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NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 




€\ 



P 



COHi 

TlTUl 11 (/J 



PROPOSED RULES 

EnviFomnent, Health, and Natural Resources 

Insurance 

Labor 

Landscape Architects, Board of 

Plumbing, Heating and Fire Sprinkler Contractors 

Practicing Psychologists, Board of 

State Health Plan Purchasing Alliance Board 

Transportation 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: AprU 15, 1994 



Volume 9 • Issue 2 • Pages 76 - 122 



TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVR CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



TTie North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the fmdings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule tliat 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (32.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. PROPOSED RULES 
Environment, Health, and 
Natural Resources 

DEM/ Air Quality 80 

Environmental Management .... 81 

Wildlife Resources Commission . . 84 
Independent Agencies 

State Health Plan Purchasing 

Alliance Board 99 

Insurance 

Multiple Employer Welfare 

Arrangements 76 

Special Services Division 76 

Labor 

OSHA 77 

Licensing Boards 

Landscape Architects, Board of . . 95 

Plumbing, Heating & Fire 
Sprinkler Contractors, Board of . 96 

Practicing Psychologists, Board of 97 
Transportation 

Highways, Division of 85 

Motor Vehicles, Division of ... . 89 

n. RRC OBJECTIONS 102 

in. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 105 

Text of Selected Decisions 

93 EDC 0234 108 

93 CPS0801 114 

IV. CUMULATIVE INDEX 121 



This publication is printed on permanent, 
acid-free paper in compliance with 
as. 125-11.13. 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Penod 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
caleruiar month. 



Revised 03/94 



PROPOSED RULES 



TITLE 11 - DEPARTMENT OF 
INSURANCE 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Department of Insurance 
intends to adopt rule cited as 11 NCAC 13 .0518. 

1 he proposed effective date of this action is July 
1, 1994. 

Ihe public hearing will be conducted at 10:00 
a.m. on May 5, 1994 at the Dobbs Building, 3rd 
Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, N.C. 27611. 

Reason for Proposed Action: To set forth proce- 
dures for continuing education requirements for 
bail bondsmen. 

(comment Procedures: Written comments may be 
sent to Fred Mohn at P.O. Box 26387, Raleigh, 
N.C. 27611. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call Fred Mohn at (919) 733-2200 or Ellen 
Sprenkel at (919) 733-4529. 

CHAPTER 13 - SPECIAL SERVICES 
DIVISION 

SECTION .0500 - BAIL BONDSMEN AND 
RUNNERS 

.0518 CONTINUING EDUCATION 

(a) Except as provided in Paragraphs (b) and (c) 
of this Rule, the license of any bail bondsman who 
fails to meet the minimum continuing education 
requirements of G.S. 58-7 1 -7 1(b) is subject to 
suspension under G.S. 58-71-80. 

(h) The Commissioner shall notify a bail bonds- 
man who appears to have failed to meet the re- 
quirements of G.S. 58-7 1-7 Kb) that the bail 
bondsman's license will be suspended unless the 
bail bondsman shows that he has complied with the 
requirements within a 90-dav period after receiving 
the notice. Notice shall be forwarded to the bail 
bondsman's address, as shown in the records of 
the Special Services Division, by certified mail. 
Ninety-three days after mailing such notice, if no 
affidavit is filed with the Department by the bail 
bondsman showing that the bail bondsman has 
complied with the requirements of G.S. 
58-71-7irb), the bail bondsman's license shall be 



suspended by order of the Commissioner. 

(c) If the bail bondsman responds to the notice, 
the Department shall review all affidavits and other 
documents filed by the bail bondsman to determine 
whether the bail bondsman has complied with the 
requirements of G.S. 58-71-71(b) within the 
90-dav period. If the Commissioner determines 
that the bail bondsman is in compliance with G.S. 
58-71-71(b), he shall enter an appropriate order. 
If the Commissioner determines that the bail 
bondsman has not shown compliance with G.S. 
58-7 1-7 1(b) within the 9Q-day period, then the 
Commissioner shall enter an order suspending the 
bail bondsman's license. 

Statutory Authority G.S 58-2-40; 58-71-71 (f). 

JSotice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to adopt rules cited as 11 NCAC 18 .0019 
- .0021. 

Ihe proposed effective date of this action is July 
1, 1994. 

Ihe public hearing will be conducted at 10:00 
a.m. on May 5, 1994 at the Dobbs Building, 3rd 
Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, N.C. 27611. 

Ixeason for Proposed Action: Establishes further 
guidelines for annual certification of MEWAs. 

L^omment Procedures: Written comments may be 
sent to Wblter James at P.O. Box 26387, Raleigh, 
N.C. 27611. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call miter James at (919) 733-3284 or 
Ellen Sprenkel at (919) 733-4529. 

CHAPTER 18 - MULTIPLE EMPLOYER 
WELFARE ARRANGEMENTS 

.0019 "QUALIFIED ACTUARY"; 

MAXIMUM NET RETENTION 
FILING 

(a) As used in this Rule and in if NCAC 18 
.0020 and 11 NCAC 18 .0021. "qualified actuary" 
means an individual who is either an Associate or 
Fellow of the Society of Actuaries or a Member of 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



76 



PROPOSED RULES 



the American Academy of Actuaries and who has 
at least five years of actuarial experience with 
ME WAS. 

(b) Every year each MEWA shall calculate its 
maximum net retention limit in accordance with 1 1 
NCAC 18 .0018. This calculation must be per- 
formed before the anniversary date of the 
MEWAs stop-loss insurance contract and shall be 
filed, no later than 30 days before the anniversary 
date of the stop-loss insurance contract, with the 
Actuarial Services Division of the Department. 
This calculation shall include the numerical results 
of all steps in JJ. NCAC 18 .0018 and shall be 
performed by a qualified actuary. 

Statutory Authority G.S. 58-2-40; 58-49-40(c). 

.0020 CERTIFICATION OF RESERVES 
FILING 

Every year each MEWA shall file the following 
actuarial certifications executed by a qualified 
actuary in the following manner: 



.0018. unless the Commissioner of 
Insurance has approved such higher limits 
as described in 1 1 NCAC 18 .0018(d). 

Statutory Authority G.S. 58-2-40; 5 8-49-40(c). 

.0021 CERTIFICATION OF RATES FILING 

Every year each MEWA shall file the following 
actuarial certification executed by a qualified 
actuary in the following manner: 

^ (Name of Qualified Actuary") 
am a qualified actuary as defined 
in 11 NCAC 18 .0Q19(a) and I 
certi fy that the rates developed 
for (Name of MEWA) are 
calculated in an actuarially sound 
manner and that these rates are 
adequate, not excessive, and not 
unfairly discriminatory." 

Statutory' Authority' G. S. 58-2-40; 58-49-40(c). 



^ (Name of Qualified Actuary) am a qualified 
actuary as defined by U NCAC 18 .0Q19(a) and 
I have reviewed:" 

£1} 11 NCAC 18 .0015 titled. "Minimum 
Reser\'e Standards. " and I certify that if 
the adequacy of the MEWAs reserves 
requires reserves in excess of the 
minimum standards described in 1 1 
NCAC 18 .0016 and U NCAC 18 
.(X)17. then such increased reserves will 
be held and considered the minimum 
reserves for (Name of MEWA). 

£2} 11 NCAC 18 .0016 titled. "Claim 
Resen.'es. " and I certify that the 
MEWAs claim reserves are being 
calculated in an actuarially sound manner 
that produces reserves at least as great as 
those prescribed in 11 NCAC 18 .0016. 

ii) 11 NCAC 18 .0017 titled. "Premium 
Reser%'es. " and I certify that the 
MEWAs premium reserves are being 
calculated in an actuarially sound manner 
that produces reserves at least as great as 
those prescribed in 11 NCAC 18 .0017. 

14} 11 NCAC 18 .0018 titled. "Maximum 
Net Retention Standard." and I certify 
that the MEWAs maximum net retention 
limits are being calculated in an 
actuarially sound manner that produces 
maximum net retention limits no greater 
than those prescribed in H NCAC 18 



TITLE 13 - DEPARTMENT 
OF LABOR 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Labor intends to amend rule cited as 13 NCAC 
07F .OWL 

1 he proposed effective date of this action is July 
3L 1994 

1 he public hearing mil be conducted at 10;00 
a.m. on May 4. 1994 at the Seaboard Building 
Conference Room, 413 N. Salisbury Street, Ra- 
leigh, NC. 

MXeason for Proposed Action: Federal law re- 
quires that the North Carolina Dept. of Labor, 
Division of Occupational Safety & Health adopt 
federal OSHA rules /standards, but in this case 
NCDOL/OSHA is adopting a more protective 
version of this Rule. 

L^omment Procedures: Persons wanting to pres- 
ent oral testimony at the hearing should provide a 
written summary of the proposed testimony to the 
Division three business days prior to the hearing 
date. Written comments will be accepted until 
May 18, 1994. Direct all correspondence to Jill 



77 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



PROPOSED RULES 



F. Cramer NCDOL/OSHA, 413 N. Salisbury St., 
Raleigh, NC 27603-5942. 

CHAPTER 7 - OSHA 

SUBCHAPTER TF - STANDARDS 

SECTION .0100 - GENERAL INDUSTRY 
STANDARDS 

.0101 GENERAL INDUSTRY 

(a) The provisions for the Occupational Safety 
and Health Standards for General Industry, Title 
29 of the Code of Federal Regulations Part 1910, 
are incorporated by reference except tbat as fol- 
lows: 

(1) within Subpart H - Hazardous Materi- 
als, 29 CFR 1910.120, Hazardous 
waste operations and emergency re- 
sponse, 29 CFR 1910.120(q)(6) is 
amended by adding a new level of 
training: 
"(vi) First responder operations 
plus level. First responders at 
operations plus level are individu- 
als who respond to hydrocarbon 
fuel tank leaks for purposes of 
stopping the release where the 
leaking tanks contain a hydrocar- 
bon fuel which is used to propel 
the vehicle on which the tank is 
located. Only those vehicles 
designed for highway use or those 
used for industrial, agricultural or 
construction purposes are cov- 
ered. First responders at the 
operations plus level shall have 
received at least training equal to 
first responder operations level 
and in addition shall receive 
training or have had sufficient 
experience to objectively demon- 
strate competency in the follow- 
ing areas and the employer shall 
so certify: 

(A) Know how to select and 
use proper specialized 
personal protective 
equipment provided to 
the first responder at 
operations plus level; 

(B) Understand basic 
hazardous materials 
terms as they pertain to 
hydrocarbon fuels; 



(C) Understand hazard and 
risk assessment 
techniques that pertain to 
gasoline, diesel fuel, 
propane and other 
hydrocarbon fuels; 

(D) Be able to perform 
control, containment, 
and/or confinement 
operations for gasoline, 
diesel fuel, propane and 
other hydrocarbon fuels 
within the capabilities of 
the available resources 
and personal protective 
equipment; and 

(E) Understand and know 
how to implement 
decontamination 
procedures for 
hydrocarbon fuels." 

(lA) Subpart R ;; Special Industries ^^ 
incorporation by reference of final rule 
for 29 CFR 1910.269, Electric Power 
Generation. Transmission, and 
Distribution, including Appendices A 
through E. published in 59 FR (January 
31, 1994) pages 4437 ; 4475 and 
adopted by the North Carolina 
Department of Labor on July 31. 1994, 
except that 29 CFR 1910.269(g)(n 
through 1910.269(g)(2)(v) is amended 
to read as follows : 
"(g) Personal protective equipment. (1) 
General. Personal protective equipment shall meet 
the requirements of Subpart I of this Part. 
(la) Definitions. £i} 'Fall 
arrest equipment' means any 
equipment that halts the 
accidental fall of the user and 
shall consist of the following: an 
anchorage, fall arrester, lanyard, 
shock (energy) absorber, body 
harness, retractable lifeline, and a 
vertical or horizontal lifeline 
which is assembled for the 
purpose of arresting any 
accidental fall of jts user. 

(ii) 'Fall protection equipment' 
means any equipment that either 
prevents the user from moving 
into an area that presents the 
hazard of falling or arrests any 
fall, 
(iii) 'Travel restricting 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



78 



PROPOSED RULES 



equipment' means any equipment 
that prevents the user from 
moving into an area that presents 
the hazard of falling and may 
consist of some or all of the 
following: an anchorage, lanyard, 
body belt, body harness, and a 
vertical or horizontal lifeline 
which is assembled for the 
purpose of preventing its user 
from moving into a faU hazard 
area. 

(iv) 'Work positioning 

equipment' means any equipment 



that provides a primary means of 
support with relative comfort for 
its user at the workplace or 
workstation. 

(2) Fall protection. £1} 

Personal fall arrest equipment 
shall meet the requirements of 
ANSI Z359.1 (1992). 

(ii) Body belts and safety straps 
for work positioning shall meet 
the requirements of §1926.959 of 
this Chapter. 

(iii) Body belts, safety straps. 
lanyards, lifelines, and body 
harnesses shall be inspected 
before use each day to determine 
that the equipment is in safe 
working condition. Defective 
equipment shall not be used. 

(iv) Lifelines shall be protected 
against being cut or abraded. 

(v) Fall arrest equipment 
meeting the requirements of 
ANSI Z359.1 (1992) shall be m 

work 



constant use with 



any 



positioning or travel restricting 
equipment in use by employees 
working at elevated locations 
more than 4 feet (1.2 m) above 
the ground on metal, concrete 
and/ or wood poles, lattice and 
non-lattice towers. substation 
structures, within the baskets of 
all extensible and articulating 
boomed aerial equipment, and in 
all generating stations. 
Anchorages and anchor points, 
and vertical and horizontal 
lifelines shall have a tensile 
strength capable of supporting a 
static load of five thousand 



(5.000) pounds. " 29 CFR 

1910.269 as amended is effective 
on July IL 1994. except for 29 
CFR 1910.269(a)(2) Trainins 
which is effective on January 31. 
1995. 

hidiior's Note: (2) Proposed text was 
published in Volume 8, Issue 18 of the North 
Carolina Register . 

(b) The parts of the Code of Federal Regulations 
adopted by reference in this Subchapter shall not 
automatically include any subsequent amendments 
thereto, except as follows: 



(1) 



(2) 



ill 



(41 



£5} 



Subpart H — Hazardous Materials — 
technical corrections at 
1910.109(g)(4)(v), Explosives and 
Blasting Agents, published in 58 FR 
(March 29, 1993) page 16496 and 
adopted by the North Carolina 
Department of Labor on December 3 1 , 
1993; 

Subpart H — Hazardous Materials — 
technical corrections at 
1910.110(d)(ll), Storage and Handling 
of Liquefiold Liquefied Petroleum 
Gases, published in 58 FR (March 19. 
1993) page 15089 and adopted by the 
North Carolina Department of Labor on 
December 31, 1993; 
Subpart I zz Personal Protective 
Equipment ;; revisions to 1910.137, 
Electrical Protective Equipment, 
published in 59 FR (January 3 1 , 1994) 
pages 4435 ^ 4437 and adopted by the 
North Carolina Department of Labor on 
July 31. 1994; 



(3^ Subpart J — General Environmental 
Controls — typographical and clarifying 
corrections at 1910.146, 
Permit-Required Confined Spaces, 
published in 58 FR (June 29. 1993) 
pages 34844 - 34851 and adopted by 
the North Carolina Department of 
Labor on September 24, 1993; 
corrections are to final rule for 
Permit-Required Confined Spaces as 
originally published in 58 FR 4462 
(January 14. 1993); 

Subpart S zz Electrical — amendment to 
citation authority for Subpart S of 1910. 
and amendments to Notes 2 and 3 for 
1910.133(c)(1) and the Note for 
1910.133(c)(3). published in 59 fE 
(January 31. 1994) pages 4475 -_ 4576 



79 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



PROPOSED RULES 



and adopted by the North Carolina 
Department of Labor on July 31. 1994; 
(6) {4) Subpart Z -- Toxic and Hazardous 
Substances : 

(A) Revocation of exposure limits in 
"Final rule limits" columns of Table 
Z-l-A at 1910.1000, Air 
Contaminants, published in 58 FR 
(June 30, 1993) pages 35338 - 35351 
and adopted by the North Carolina 
Department of Labor on September 
24, 1993. 

(B) Correction to Table Z-3 Mineral Dust 
at 1910.1000, Air Contaminants, 
published in 58 FR (July 27, 1993) 
page 40191 and adopted by the North 
Carolina Department of Labor on 
December 31, 1993. 

(C) Typographical and technical 
corrections at 1910.1027, Cadmium, 
published in 58 FR (April 23, 1993) 
pages 21778 - 21787 and adopted by 
the North Carolina Department of 
Labor on September 24, 1993; 
corrections are to final rule for 
Occupational Exposure to Cadmium 
as originally published in 57 FR 
42101 (September 14, 1992). 

(c) Copies of the applicable Code of Federal 
Regulations sections referred to in this Subchapter 
are available to the public. Please refer to 13 
NCAC 7A .0302 for the costs involved and from 
whom copies may be obtained 

Statutory Authority G.S. 95-131; 95-133; 150B- 
21.6. 

TITLE ISA - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR-DEM/Air Quality 
intends to amend rules cited as 15A NCAC 2D 
.1301, .1302 and .1304. 

1 he proposed effective date of this action is 
November 1, 1994. 

1 he public hearing will be conducted at 7:00 
p.m. on May 16, 1994 at the Forsyth County 
Public Library' Auditorium, 660 West 5th Street, 
Winston-Salem, NC. 



Jxeason for Proposed Action: To correct a 
reference to remove Greensboro/Winston- 
Salem/High Point MSA from the oxygenated 
gasoline requirement to establish a triggering 
mechanism for maintenance areas. 

i^omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearings. Am' person desiring to comment for 
more than three minutes is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. The hearing 
record hHI remain open until June 15, 1994, to 
receive additional written statements. 

Comments should be sent to and additional 

information concerning the hearing or the 

proposals may be obtained by contacting: 

Mr. Thomas C Allen 

Division of Environmental Management 

P O Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-1489 

r'iscal Note: 1 hese Rules affect the expenditures 
or revenues of local funds. A fiscal note was 
submitted to the Fiscal Research Division on 
March 24, 1994, OSBM on March 24, 1994, N. C. 
League of Municipalities on March 4, 1994, and 
N. C. Association of County Commissioners on 
March 4, 1994. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION 
CONTROL REQUIREMENTS 

SECTION .1300 - OXYGENATED 
GASOLINE STANDARD 

.1301 PURPOSE 

This Section sets forth oxygenated gasoline 
standards in areas where an oxygenated gasoline 
program is implemented pursuant to State law for 
all gasoline sold wholesale for use or for all 
gasoline sold retail, offered for use, dispensed, or 
otherwise provided for use in any spark-ignition 
engine other than aircraft in the areas defined in 
Rule .13024a) of this Section during the time 
periods defined in Rule .1302{c}{b) of this Section. 

Statutory Authority G.S.143-215. 3(a)(1); 143- 



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80 



PROPOSED RULES 



215. 107(a)(3). (7). 

.1302 APPLICABILITY 

(a) This Section applies to gasoline identified in 
Rule .1301 of this Section during the time period 
described in Paragraph (¥) {c} of this Rule in th« 
two areas id e ntified aa follows: 

{^ the Raleigh/Durham Metropolitan 
Statistical Area consisting of Durham, 
Franklin, Orange, and Wake Counties^-j 

(3^ the Groon o boro/Winston Sal e m/High 

Point — Metropolitan Statistical — Ar e a 

oonsiating of Davio, Davidaon, Forsyth. 
Guilford, Randolph, Stok e s, and 



(b) 



Yadkin Countieo. 
This Section shall 



apply to gasoline 



identified in Rule .1301 of this Section during the 
time period described in Paragraph (c) of this Rule 
in any of the following areas, and in that area 
only, when the Director notices in the North 
Carolina Register that the area is in violation of 
the ambient air quality standard for carbon 
monoxide: 

(1) the Greensboro/Winston-Salem/High 
Point Metropolitan Statistical Area 
consisting of Davie, Davidson, Forsyth, 
Guilford, Randolph, Stokes, and 
Yadkin Counties; or 
(2] the Charlotte/Gastonia/Rock Hill 
Metropolitan Statistical Area consisting 
of Cabarrus, Gaston, Mecklenburg, and 
Union Counties. 
Violations of the ambient air quality standard for 
carbon monoxide shall be determined in 
accordance with 40 CFR 50.8. 

^(c) This Section applies to gasoline identified 
in Rule .1301 of this Section and in the counties 
identified in Paragraph (a) or (b) of this Rule for 
the four-month period beginning November 1 and 
running through the last day of February of the 
following year. The first such period begins 
November 1 , 1 992^ for areas identified in 
Paragraph (a) of this Rule . For areas identified in 
Paragraph (b) of this Rule, the first such period 
shall begin on the first November i following the 
notice of violation in the North Carolina Register. 
4^(d) Gasoline in storage^ 

(1) within the counties identified in 
Paragraph (a) of this Rule prior to 
November 1; or 

(2) within the counties identified in 
Paragraph (b) of this Rule prior to 
November 1 of the year in which this 
Section goes into effect 



at a dispensing facility having total gasoline tank 
capacity of less than 550 gallons or a total weekly 
dispensing rate of less than 550 gallons is 
exempted from Rule .1304 of this Section, but any 
gasoline supplied to the facility during the period 
identified in Paragraph (b) or £c) of this Rule shall 
comply with Rule .1304 of this Section. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(3), (7). 

.1304 OXYGEN CONTENT STANDARD 

(a) Gasolino With the exception in Paragraph fb") 
of this Rule, gasoline to which this Section applies 
shall have an oxygen content of not less than 2.7 
percent by weight during the period defined in 
Paragraph (fe)Ic} of Rule .1302 of this Section. 

£b} After October 31, 1994, if the Director 
notices in the North Carolina Register that the 
Raleigh/Durham Metropolitan Statistical Area is in 
violation of the ambient air quality standard for 
carbon monoxide, gasoline to which this Section 
applies sold in the Raleigh/Durham Metropolitan 
Statistical Area shall have an oxygen content of not 
less than 3.1 percent by weight during the period 
defined in Paragraph (c) of Rule .1302 of this 
Section. The first such period shall begin on the 
first November 1 following the notice of violation 
in the North Carolina Register. Violations of the 
ambient air quality standard for carbon monoxide 
shall be determined in accordance with 40 CFR 
50.8. 



Statutory Authority G.S 143-21 5. 3(a)(1); 143- 
215. 107(a)(3), (7). 






* * * * 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Division of Environ- 
mental Management intends to amend rule cited as 
15A NCAC2L .0202. 

1 he proposed effective date of this action is 
September 1, 1994. 

1 he public hearing will be conducted at 7:00 
p.m. on May 12, 1994 at the Archdale Building, 
Ground Floor Hearing Room, 512 North Salisbury 
Street, Raleigh NC 27604. 

ixeason for Proposed Action: Will provide 



81 



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PROPOSED RULES 



groundwater standards for eight (8) substances. 
These chemicals are Boron, Butylbenzyl phthalate, 
Di-n-Octyl phthalate, Diundecyl phthalate 
(Santicizer 711), Fluorene, Naphthalene, 
Phenanthrene, and Phenol. Action to consider 
adoption of standards for these eight substances as 
groundwater standards is necessary to satisfy 
requirements of 15A NCAC 2L .0202(c). 

Comment Procedures: Interested persons may 
contact David Hance at (919) 733-3221 for more 
information. Oral comments may be made during 
the hearing. All written comments must be 
submitted by May 16, 1994. Written copies of oral 
statements exceeding three minutes are requested. 
Oral statements may be limited at the discretion of 
the hearing officer Mail comments to: David 
Hance, DEHNR-DEM Groundwater Section, P.O. 
Box 29535, Raleigh, N. C. 27626-0535. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2L - GROUNDWATER 
CLASSIFICATION AND STANDARDS 

SECTION .0200 - CLASSIFICATION 

AND GROUNDWATER QUALITY 

STANDARDS 

,0202 GROUNDWATER QUALITY 
STANDARDS 

(a) The groundwater quality standards for the 
protection of the groundwaters of the state are 
those specified in this Rule. They are the 
maximum allowable concentrations resulting from 
any discharge of contaminants to the land or 
waters of the state, which may be tolerated without 
creating a threat to human health or which would 
otherwise render the groundwater unsuitable for its 
intended best usage. 

(b) The groundwater quality standards for 
contaminants specified in Paragraphs (g) and (h) of 
this Rule shall be as listed, except that: 

(1) Where the standard for a substance is 
less than the practical quantitation limit, 
the detection of that substance at or 
above the practical quantitation limit 
shall constitute a violation of the 
standard. 

(2) Where two or more substances exist in 
combination, the Director shall consider 
the effects of chemical interactions as 
determined by the Division of 



Epidemiology and may establish 
maximum concentrations at values less 
than those established in accordance 
with Paragraphs (c) and (g) of this 
Rule. In the absence of information to 
the contrary, the carcinogenic risks 
associated with carcinogens present 
shall be considered additive and the 
toxic effects associated with 
non-carcinogens present shall also be 
considered additive. 
(3) Where naturally occurring substances 
exceed the established standard, the 
standard will be the naturally occurring 
concentration as determined by the 
Director. 

(c) Except for tracers used in concentrations 
which have been determined by the Division of 
Epidemiology to be protective of human health, 
and the use of which has been permitted by the 
Division, substances which are not naturally 
occurring and for which no standard is specified 
shall not be permitted in detectable concentrations 
in Class GA or Class GSA groundwaters. Any 
person may petition the Director to establish an 
interim maximum allowable concentration for an 
unspecified substance, however, the burden of 
demonstrating those concentrations of the 
substance which correspond to the levels described 
in Paragraph (d) of this Rule rests with the 
petitioner. The petitioner shall submit relevant 
toxicological and epidemiological data, study 
results, and calculations necessary to establish a 
standard in accordance with the procedure 
prescribed in Paragraph (d) of this Rule. Within 
three months after the establishment of an interim 
maximum allowable concentration for a substance 
by the Director, the Director shall initiate action to 
consider adoption of a standard for that substance. 

(d) Groundwater quality standards for substances 
in Class GA and Class GSA groundwaters are 
established as the lesser of: 

(1) Systemic threshold concentration 
calculated as follows: [Reference Dose 
(mg/kg/day) x 70 kg (adult body 
weight) x Relative Source Contribution 
(.10 for inorganics; .20 for organics)] / 
[2 liters/day (avg. water consumption)]; 

(2) Concentration which corresponds to an 
incremental lifetime cancer risk of 
1x10*; 

(3) Taste threshold limit value; 

(4) Odor threshold limit value; 

(5) Maximum contaminant level; or 

(6) National secondary drinking water 



9:2 



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April 15, 1994 



82 



PROPOSED RULES 



standard. 

(e) The following references, in order of prefer- 
ence, shall be used in establishing concentrations 
of substances which correspond to levels described 
in Paragraph (d) of this Rule. 

(1) Integrated Risk Information System 
(U.S. EPA). 

(2) Health Advisories (U.S. EPA Office of 
Drinking Water). 

(3) Other health risk assessment data pub- 
lished by U.S. EPA. 

(4) Other appropriate, published health risk 
assessment data, and scientifically valid 
peer-reviewed published toxicological 
data. 

(f) Groundwater quality standards specified in 
Paragraphs (g) and (Ti) of this Rule and interim 
maximum allowable concentrations established 
pursuant to Paragraph (c) of this Rule shall be 
reviewed on a biennial basis. Appropriate modifi- 
cations to established standards will be made in 
accordance with the procedure prescribed in 
Paragraph (d) of this Rule where modifications are 
considered appropriate based on data published 
subsequent to the previous review. 

(g) Class GA Standards. Where not otherwise 
indicated, the standard refers to the total concen- 
tration in milligrams per liter of any constituent in 
a dissolved, colloidal or particulate form which is 
mobile in groundwater. This does not apply to 
sediment or other particulate matter which is 
preserved in a groundwater sample as a result of 
well construction or sampling procedures. 



(1) 
(2) 
(3) 
(4) 
(5) 
£6) 

18) 

V™7 

m) 
{^ 
{^ 

04) 

(\f,\ 



acetone: 0.7 

acrylamide (propenamide): 0.00001 

arsenic: 0.05 

barium: 2.0 

benzene: 0.001 

boron: 0.32 

(7) bromoform (tribromomethane) : 

0.00019 

butylbenzyl phthalate: 0.10 

£9) cadmium: 0.005 

(10) carbofuran: 0.036 

carbon tetrachloride: 0.0003 



iiii 
(12) 
(13) 
(14) 
(15) 



la^ 



chlordane: 2.7 x 
chloride: 250.0 
chlorobenzene: 0.05 
chloroform (trichloromethane) : 
0.00019 

(16) 2-chlorophenol: 0.0001 

(17) chromium: 0.05 

(18) cis-l,2-dichlonoethene: 0.07 

(19) coliform organisms (total): 1 per 
100 milliliters 



fW) 

(~n,\ 



(20) color: 15 color units 

(21) copper: 1 .0 

(22) cyanide: 0.154 

(23) 2, 4-D (2,4-dichlorophenoxy 
acetic acid): 0.07 

(24) l,2-dibromo-3-chloropropane: 
2.5 X 10-"') 

(25) dichlorodifluoromethane 
(Freon-12; Halon): 1.4 

(26) 1,1 dichloroethane: 0.7 

(27) 1,2-dichloroethane (ethylene 
dichloride): 0.00038 

(28) 1,1-dichlonoethylene (vinylidene 
chloride): 0.007 



43^ 


(29) 1,2-dichloropropane: 0.00056 


(3^ 


(30) di-n-butyl (or dibutyl) phthalate 




(DBP): 0.7 


^39) 


(31) diethylphthalate (DEP): 5.0 


(^ 


(32) di(2-ethylhexyl) phthalate 




(DEHP): 0.003 


(33) 


di-n-octvl phthalate: 0.14 


^m 


(34) p-dioxane (1,4-diethylene 




dioxide): 0.007 


m) 


(35) dioxin: 2.2 x lO"'" 


(^ 


(36) dissolved solids (total): 500 


(37) 


diundecvl phthalate (Santicizer 711): 




0.14 


m) 


(38) endrin: 0.002 


im 


(39) epichlorohvdrin 




(l-chloro-2,3-epoxypropane): 0.00354 


4^ 


(40) ethylbenzene: 0.029 


^*7) 


(41) ethylene dibromide (EDB; 




1,2-dibromoethane): 4.0 x lO"" 


{^ 


(42) ethylene glycol: 7.0 


(43) 


fluorene: 0.28 


#9) 


(44) fluoride: 2.0 


(AC\\ 


(45) foaming agents: 0.5 


{44^ 


(46) gross alpha (adjusted)particle 




activity (excluding radium-226 and 




uranium): 15 pCi/1 


443) 


(47) heptachlor: 8.0 x lO'* 


{A^ 


(48) heptachlor epoxide: 4.0 x lO"^ 


(44) 


(49) heptane: 2.1 


44§) 


(50) hexachlorobenzene 




(perchlorobenzene): 0.00002 


(46) 


(51) n-hexane: 0.42 


{47) 


(52) iron: 0.3 


(48) 


(53) lead: 0.015 


{49) 


(54) lindane: 2.0 x 10^ 


m) 


(55) manganese: 0.05 


(^ 


(56) mercury: 0.0011 


(§3) 


(57) metadichlorobenzene 




(1,3-dichlonDbenzene): 0.62 


^^ 


(58) methoxychlor: 0.035 


{§4) 


(59) methylene chloride 



83 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



PROPOSED RULES 



(5j) 
(62) 

(71) 
(72) 

/•/;<; -I 
f^ 






(dichloromethane): 0.(X)5 

(60) methyl ethyl ketone (MEK; 
2-butanone): 0.17 

(61) methyl tert-butyl ether (MTBE): 
0.2 

naphthalene: 0.021 

(63) nickel: 0.1 

(64) nitrate: (as N) 10.0 

(65) nitrite: (as N) 1 .0 

(66) orthodichlorobenzene 
(1,2-dichlonDbenzene): 0.62 

(67) oxamyl: 0.175 

(68) paradichlorobenzene 
(l,4-dichlon3benzene): 0.075 

(69) pentachlorophenol: 0.0003 

(70) Ph: 6.5 - 8.5 
phenanthrene: 0.21 
phenol: 0.30 

(73) radium-226 and radium-228 
(combined): 5 Pci/1 

(74) selenium: 0.05 

(75) silver: 0.018 

(76) styrene (ethenylbenzene) : 0.1 

(77) sulfate: 250.0 

(78) tetrachloroethylene 
(perchloroethylene; PCE): 0.0007 

(79) toluene (methyjbenzene): 1.0 

(80) toxaphene: 3.1 x la'' 

(81) 2, 4, 5,-TP (Silvex): 0.05 

(82) trans- 1,2-dichloroethene: 0.07 

(83) 1,1,1 -trichloroethane (methyl 
chloroform): 0.2 

(84) trichloroethylene (TCE): 0.0028 
trichlorofluoromethane: 2.1 

vinyl chloride (chloroethylene): 
10^ 

xylenes (o-, m-, and p-): 0.53 
zinc: 2.1 

The standards for this 
same as those for Class GA 



(85) 
(86) 
1.5 X 

{W) 187} 

{80) 188} 
(h) Class GSA Standards 
class shall be the 



except as follows: 

(1) chloride: allowable increase not to 
exceed 100 percent of the natural 
quality concentration. 

(2) total dissolved solids: 1000 mg/1. 
(i) Class GC Waters. 

(1) The concentrations of substances which, 
at the time of classification exceed the 
standards applicable to Class GA or 
GSA groundwaters shall not be caused 
to increase, nor shall the concentrations 
of other substances be caused to exceed 
the GA or GSA standards as a result of 
further disposal of contaminants to or 
beneath the surface of the land within 



the boundary of the area classified GC. 

(2) The concentrations of substances which, 
at the time of classification, exceed the 
standards applicable to GA or GSA 
groundwaters shall not be caused to 
migrate as a result of activities within 
the boundary of the GC classification, 
so as to violate the groundwater or 
surfece water quality standards in 
adjoining waters of a different class. 

(3) Concentrations of specific substances, 
which exceed the established standard 
at the time of classification, shall be 
listed in Section .0300 of this 
Subchapter. 

Statutory Authority G.S. 143-214.1; 1438-282(2). 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule cited as 
15ANCAC IOC .0302. 



1 he proposed effective date of this action 
October 1. 1994. 



IS 



1 he public hearing will be conducted at 10:00 
a.m. on May 9, 1994 at the Archdale Building, 
3rd Floor Conference Room, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

ixeason for Proposed Action: To prohibit the 
taking of spotted (speckled) sea trout with special 
fishing devices in inland waters. 

L^onwient Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
April 15, 1994 to May 16. 1994. Such written 
comments must be delivered or mailed to the N. C. 
Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



84 



PROPOSED RULES 



SECTION .0300 - GAME FISH 

.0302 MANNER OF TAKING 
INLAND GAME FISHES 

Except as provided below, it is unJawful for any 
person to take inJand game fishes from any of the 
waters of North Carolina by any method other than 
with hook and line. Landing nets may be used to 
land fishes caught on hook and line. Game fishes 
taken incidental to commercial fishing operations 
in joint fishing waters or coastal fishing waters 
shall be immediately returned to the water un- 
harmed. Game fishes taken incidental to the use 
of licensed special devices for taking nongame 
fishes from inland fishing waters as authorized by 
15A NCAC IOC .0407 shall be immediately 
returned to the water unharmed , e xcept that spot 
t e d s e a trout may bo r e tained without limit . 

Statutory Authority G.S. 113-134; 113-273; 
113-292; 113-302. 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

I\ otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend rule cited as 19A 
NCAC 2B .0221. 

1 he proposed effective date of this action is 
August 1, 1994. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice); A demand for a public hearing must be 
made in writing and mailed to Emily Lee, Depart- 
ment of Transportation , P. O. Box 25201 , Raleigh , 
NC 27611. The demand must be received within 
15 days of this Notice. 

AVeason for Proposed Action; Amendments 
increase the distances from an interchange that 
facilities may be located to qualify for erection of 
General Motorist Services signs. 

L^omment Procedures; Any interested person may 
submit written comments on the proposed rule by 
mailing the comments to Emily Lee, Department of 
Transportation. PO. Box 25201, Raleigh, NC 
27611 within 30 days after the proposed rule is 
published or until the date of any public hearing 



held on the proposed rule, whichever is longer. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2B - HIGHWAY PLANNING 

SECTION .0200 - TRAFFIC ENGINEERING 

.0221 GENERAL MOTORIST SERVICES 
SIGNS 

(a) General Motorist Services Signs mean signs 
that provide travelers with directional information 
for essential motorist services. The signs carry 
word legends GAS, DIESEL, LP (PROPANE) 
GAS. FOOD, LODGING, PHONE, HOSPITAL, 
and TOURIST INFORMATION CENTER with 
appropriate directional legend, and the exit number 
where applicable. The cost associated with Gener- 
al Motorist Services Signs is the responsibility of 
the Department of Transportation. 

(b) Specific Services Signs mean signs erected 
under the Specific Information Signing Program as 
described in G.S. 136-140.7. These signs provide 
travelers with business identification and direction- 
al information for essential motorist services. The 
signs carry word legends GAS, FOOD, LODG- 
ING and CAMPING with appropriate directional 
legend, the exit number where applicable, and one 
or more business logos. The cost associated with 
Specific Services Signs is borne by the businesses 
whose logos are shown on the signs through initial 
and annual fees paid to the Department of Trans- 
portation. 

(c) State Rural Primary' Syst e m. Signing for 
general motorist services shall be installed only on 
rural fully controlled access highways and shall be 
in conformance with the "Manual on Uniform 
Traffic Control Devices. " Requests for signing for 
general motorist services shall be directed to the 
highway division engineer having jurisdiction in 
the county in which the sign is proposed. If ap- 
proved, services signing shall be installed and 
maintained by the Department of Transportation. 

(d) General Requirements for All Services. The 
requirements in this Paragraph shall be applied in 
determining the placement of service signs on the 
int e rstate or rural fully controlled access highways. 
Service signs shall be erected only at grade sepa- 
rated interchanges. A fully controlled access 
highway shall have neither a minimum length 
requirement nor minimum number of interchanges 
requirement to qualify for erection of service 
signs. A facility shall meet the specific require- 
ments for signs in Paragraph (e). It shall have an 
outside coin-operated telephone in the immediate 



85 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



PROPOSED RULES 



vicinity of the business (within the intersection 
area, at an adjacent business or across the road), 
which is accessible. A business phone at an 
adjacent business is not a public telephone for a 
particular applicant business. The maximum 
distance that a "Gas", "Diesel", "LP (PROPANE) 
Gas", "Food", or "Lodging" service can be locat- 
ed from the facility shall not exceed one mile, with 
the maximum — diotano e o — b e ing — thr ee — mil e s — fef 
"Food" and "Lodging", and fiv e mil e s for "Camp 
ing", three miles in either direction via an 
all-weather road. Where no qualifying services 
exist within three miles, the maximum distance 
may be increased to six miles, provided the total 
travel distance to the business and return to the 
interchange does not exceed 12 miles. When the 
nearest qualifying service is located more than 
three miles from the facility, the distance to the 
service shall be shown on the service sign at the 
ramp terminal. The maximum distance for 
"Camping" service shall not exceed 10 miles. 
Said distances shall be measured from the point on 
the interchange crossroad, coincident with the 
centerline of the facility route median, along the 
roadways to the respective motorist service. The 
point to be measured to for each business is a 
point on the roadway that is perpendicular to the 
comer of the nearest wall of the business to the 
interchange. The wall to be measured to shall be 
that of the main building or office. Walls of sheds 
(concession stands, storage buildings, separate 
restrooms, etc.) whether or not attached to the 
main building are not to be used for the purposes 
of measuring. If the office (main building) of a 
business is located more than 0.2 mile from a 
public road on a private road or drive, the distance 
to the office along the said drive/road shall be 
included in the overall distance measured to 
determine whether or not the business qualifies for 
business signing. The office shall be presumed to 
be at the place where the services are provided. 

(e) Specific Requirements for Erection of 
General Motorist Services Signs: 

(1) Gas, Diesel, LP (PROPANE) Gas, and 
Associated Services. Criteria for 
erection of a Gas service sign, a Diesel 
service sign, or an LP (PROPANE) Gas 
Service sign shall include: 

(A) appropriate licensing to operate as 
required by law; 

(B) vehicle services for fuel, motor oil, 
tire repair (by an employee) and 
water; 

(C) restroom facilities and drinking water 
suitable for public use; 



(D) an on-premise attendant to collect 
monies, make change, and make or 
arrange for tire repairs; and 

(E) year-round operation at least 16 
continuous hours per day, 7 days a 
week. 

(2) Food. Criteria for erection of a Food 
service sign shall include: 

(A) appropriate licensing to operate as 
required by law, and a permit to 
operate by the health department; 

(B) year-round operation at least 12 
continuous hours per day to serve 
three meals a day (sandwich type 
entrees may be considered a meal) 
(breakfast, lunch, supper), 7 days a 
week; 

(C) indoor seating for at least 20 persons; 
and 

(D) public restroom facilities. 

(3) Lodging. Criteria for erection of a 
Lodging service sign shall include: 

(A) appropriate licensing to operate as 
required by law, and a permit to 
operate by the health department; 

(B) sleeping accommodations consisting 
of a minimum of 10 units, each 
including bathroom and sleeping 
rooms; 

(C) off-street vehicle parking for each 
lodging room for rent; and 

(D) year-round operation. 

(4) Camping. Criteria for erection of a 
Camping service sign shall include: 

(A) appropriate licensing to operate as 
required by law; 

(B) meeting all sfate and county health 
and sanitation codes, and having 
water and sewer systems which have 
been duly inspected and approved by 
the local health authority. The 
operator shall present evidence of 
such inspection and approval; 

(C) at least 10 campsites with 
accommodations for all types of 
travel-trailers, tents and camping 
vehicles; 

(D) parking accommodations to meet 
current demand; 

(E) continuous operation, 7 days a week 
during business season. 

A business sign shall be removed or 
masked by the Department during off" 
seasons, if the campground is operated 
on a seasonal basis. 



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86 



PROPOSED RULES 



(5) Phone. Signs may be posted for a 
phone location only in respect to 
outdoor telephone booths where service 
is available on a twenty-four hour basis. 

(6) Hospital. Hospital signs shall consist 
of the word "Hospital" along the main 
roadway and the blue "H" at the end of 
the ramp. The blue "H" shall be used 
to trailblaze from the ramp terminal to 
the hospital where needed. The intent 
of providing "Hospital" signs along 
interstate or controlled access highways 
is to direct unfemiliar motorists to a 
hospital in case there is a need for 
emergency medical services. The blue 
"Hospital" sign shall be used on the 
interstate or controlled access 
highways. These hospital signs shall be 
used only for hospitals equipped to 
handle emergency cases with a 
physician on duty 24 hours each day 
and within a practical distance from the 
interchange. A blue sign showing the 
name of the hospital at the end of the 
ramp along with the proper directional 
arrow may be provided when a traffic 
engineering investigation has shown the 
need. Trailblazer signs where 
necessary shall mark the route to the 
hospital using the blue "H". Use of the 
name of the hospital on green 
directional signs along conventional 
(non-interstate or non-controlled access) 
type streets and roads when a traffic 
engineering investigation has shown 
they are needed may be permitted. 
These green directional signs apply 
only to those hospitals which do not 
provide the 24-hour emergency service. 

(7) Service signs shall not be erected on 
non-controlled or partially controlled 
access facilities or at locations within or 
near municipalities where it is obvious 
to the motorist that services are 
available. 

(f) Tourist Information Center. Tourist 
information center service signing may be 
approved and installed by the Department of 
Transportation when the following conditions are 
met: 

(1) The motorist using the highway in a 
particular direction must be able to 
leave and return to the highway via the 
same interchange and continue in the 
same direction of travel. 



(2) The service must be located in a rest 
area on the freeway or within one mile 
of the interchange off ramp and on a 
direct route from the freeway. 

(3) The service must operate continuously 
for at least eight hours per day, seven 
days per week, and 360 days per year. 

(4) At least one separate and trained 
attendant with knowledge of tourist 
facilities in the state shall be on duty to 
service visitors during all hours of 
operation. 

(5) The facility must have available at no 
charge to visitors complete information 
on tourist facilities in the state; such as 
lodging, auto service, food, medical, 
recreational, historical and scenic sites; 
and it must also be readily available 
when attendant is off duty. 

(6) The service must be housed in a 
separated area from other facilities in 
an appropriate building to provide an 
area, heated in winter and cooled in 
summer, of not less than 625 square 
feet of floor area for displays and 
lounge devoted for providing this 
service. 

(7) The service must have at least one 50 
pocket rack for noncommercial public 
service materials and displays. 

(8) The service must have rest room 
facilities available at no cost to the 
visitor and designed for use by 
handicapped individuals. 

(9) The service must have drinking water 
approved by appropriate local authority. 

(10) The service must have a public 
telephone designed for use by 
handicapped individuals. 

(11) The service must have off-street 
parking at no cost to the motorist and 
must have curb cuts and ramps for the 
handicapped. 

(12) Any displays, literature, magazines, 
etc., that would be judged by the 
Department to be offensive to visitors 
with children must not be readily 
visible. 

(13) The service must provide designated 
facilities for pets. 

(14) The name of the operating agency, 
community, group or enterprise shall 
not appear in the legend of any sign. 

(g) Removal of General Motorist Services Signs. 
(1) If municipal limits are revised so that 



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PROPOSED RULES 



between the previous interchange and 800 
feet in advance of the exit direction sign 
for the interchange from which the ser- 
vices are available. There shall be at 
least 800 feet spacing between the panels 
and other signs. In the direction of 
traffic, the successive panels shall be 
those for "CAMPING", "LODGING", 
"FOOD", and "GAS" in that order. A 
combination type panel may be used in 
remote rural areas of the Interstate Sys- 
tem, or other fully controlled access 
highway and when space does not permit 
all signs and only two of each type of 
service is available at the location. A 
maximum of three business signs may 
appear below each respective service on 
a combination type panel. If all four 
services are available, "GAS" and 
"FOOD" shall be combined on one sign, 
and "LODGING" and "CAMPING" shall 
be combined on one sign. When the 
number of business facilities at a rural 
interchange are increased to more than 
three for one or more services, existing 
combination service business signing 
must be removed and replaced with sign 
panels, dedicated to each service. If the 
spacing limitations prohibit the erection 
of Specific Information Panels for all of 
the types of services available, preference 
shall be given to "GAS", "FOOD", 
"LODGING" or "CAMPING" services in 
that order. No panels shall be erected 
where minimum spacing limitations 
cannot be met. 
If a panel (s) cannot be erected due to spacing 
limitations, a supplemental service sign, which lists 
the additional services available, may be erected 
below existing sign(s). Not more than three 
services may be erected below an existing sign. 

(5) On each exit ramp, a ramp panel for the 
qualified type of motorist service may be 
erected. 

If all of the qualified services are visible from the 
exit ramp terminal, ramp panels are not required. 

(6) The ramp panel shall be erected as de- 
tailed on the signing plans for the inter- 
change. If conditions permit, the succes- 
sive panels along the ramp in the direc- 
tion of traffic shall be those for "CAMP- 
ING", "LODGING", "FOOD", and 
"GAS" in that order. 

(7) If there is insufficient space on the ramp 
or the mainline for all the panels, priority 



shall be given to "GAS", "FOOD", 
"LODGING", then "CAMPING" servic- 
es in that order. If panel(s) cannot be 
erected on a ramp due to spacing limita- 
tions, a supplemental service sign, which 
lists the additional services available, 
may be erected. 
(8) Panels shall not be erected at an inter- 
change where the motorist cannot conve- 
niently re-enter the freeway and continue 
in the same direction of travel. Pan e ls 
s hall not b e e r e ct e d at any intorohango 
with anoth e r controll e d aco e ao facility'. 

Authority G.S. 136-89.56; 136-137; 136-139; 
143B-346; 143B-348; 143B-350(f); 23 C.F.R. 750, 
Subpart A; 23 U.S.C. 131(f). 









* * * * 



ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Transportation, 
Division of Motor Vehicles, School Bus and Traffic 
Safety Section intends to amend rules cited as 19A 
NCAC 03G . 0207; 031 . 0202, . 0307. . 0501 , . 0503. 
.0601, .0602, .0701 and .0703. 

1 he proposed effective date of this action is July 
1. 1994. 

1 he public hearing will be conducted at 1:00 
p.m. - 3:00 p.m. on May 4. 1994 at the Division 
of Motor Vehicles Building, Annex Room 201 
(Corference Room), 1100 New Bern Avenue, 
Raleigh, NC 27697. 

treason for Proposed Action: 
19A NCAC 03G .0207 - The commercial driver 
license is to go to a five-year renewal cycle. 
These requirements for school bus driver certifica- 
tion are tied to the CDL cycle. The transition 
period will entail CDLs of a minimum of three 
years ' and a maximum of seven years ' validity. 
The proposed formulation posits per-year require- 
ments which meet any eventuality. 
19A NCAC 031 .0202 - Tliis item adds one re- 
quirement for obtaining an original Commercial 
Driver Training School license. This should help 
the schools meet their obligations before they have 
an emergency. 

19A NCAC 031 .0307 - This addition to (l)(b) 
requires that a person taking driver training in a 



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PROPOSED RULES 



Commercial Driver Training School be covered by 
a permit while operating the driver training car. 
The addition to (2) makes more specific that a 
person with a learner 's permit has the book knowl- 
edge necessary, needs only in-car physical driving 
practice, and cannot be required by a school to 
pay money unnecessarily. 

19A NCAC 031 .0501 & .0503 - These changes 
stiffen the requirements for certification as a 
private commercial driver training instructor, 
requiring a cleaner driving record for a longer 
period of time. They also would require a crimi- 
nal check. 

19A NCAC 031 .0601 - .0602 - Strictly speaking, 
these amendments represent no change at all. The 
wording of the proposal is the same; it is merely 
shifted from . 0602 to . 0601 , as the more appropri- 
ate location for the statement. The component 
parts of .0602 are re-lettered/ re-numbered to 
reflect the removal of former (b). 
19A NCAC 031 .0701 & .0703 - The change in 
.0701 doubles the face value of the bond covering 
a commercial driver training school against 
liability. Adding the city to the address advertized 
will aid the consumer in deciding his costs of 
travel before signing with the school. 

l^omment Procedures: Interested persons may 
pre-register to speak at the public hearing by 
contacting Mark Fountain, NC DMV, School Bus 
and Traffic Safety Section, 1100 New Bern Avenue, 
Raleigh, N. C. 27697 (919) 733-3046 no later than 
two days prior to the hearing. A 10-minute speak- 
ing time will be observed. Written comments will 
also be accepted and should be sent to Mr. Foun- 
tain at the above address no later than May 16, 
1994. 

CHAPTER 3 - DIVISION 
OF MOTOR VEHICLES 

SUBCHAPTER 3G - SCHOOL BUS 
AND TRAFFIC SAFETY SECTION 

SECTION .0200 - SCHOOL BUS 
DRIVER TRAINING 

.0207 RENEWAL OF CERTIFICATION 

Every driver must be re-certified at the time of 
the expiration of his Commercial Driver License 
e v e ry four y e ars upon passing the three written 
tests (general knowledge, passenger transport, and 
air brakes), a pre-trip test, a road test or route 
observation, th e three road t e ota (pro trip insp e o 



tion, — boflio skillo, and road), and an eye test. A 
driver may be exempted from the written tests, 
provided he has accumulated no more than three 
points on his driving record a driving r e cord oloor 
of any oonviotion for a moving violation since his 
last certification and has had at least one hour fe«f 
hours of in-service training for each year since his 
last certification. A driver whose certification 
expires may be re-certified within thirty days in 
the same manner as though his certification had 
not expired. Any driver whose certification 
expires for more than thirty days may be re-certi- 
fied within the next year four years following the 
expiration upon passing the three written tests 
(general knowledge, passenger transport, and air 
brakes) , the three skills road tests (pre-trip inspec- 
tion, basic skills, and road), and an eye test. If 
more than one year has four years have elapsed 
since the expiration of the most recent certifica- 
tion, the applicant must complete the full training 
course required of a beginning driver. 

Statutory Authority G.S. 20-39(b); 20-218. 

SUBCHAPTER 31 - RULES AND 

REGULATIONS GOVERNING 

THE LICENSING OF COMMERCIAL 

DRIVER TRAINING SCHOOLS 

AND INSTRUCTIONS 

SECTION .0200 - REQUIREMENTS AND 

APPLICATIONS FOR COMMERCIAL 

DRIVER TRAINING SCHOOLS 

.0202 ORIGINAL APPLICATION 

Each original application for a commercial driver 
training school license shall consist of the follow- 
ing: 

(1) Application for license; 

(2) Personal history statement (Form SBTS- 
601, available from the School Bus and 
Traffic Safety Section) of owner-operator 
or manager; 

(3) Proposed plan of operation; 

(4) Proof of liability insurance; 

(5) Sample copies of contracts; 

(6) A check or money order in the amount of 
forty dollars ($40.00). This fee is due 
for both original and renewal applications 
for license; 

(7) Certificate of assumed name; 

(8) Surety Bond; 

(9) A report from the appropriate agency 
indicating that the location or locations 
meet fire safety standards; 



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PROPOSED RULES 



(10) A copy of the deed, lease, or other legal 
instruments authorizing the school to 
occupy such locations; 

(11) List of fees for all services oflFered by the 
school; afldr 

(12) A copy of lease agreement if leasing 
vehicles! and 

(13) A copy of the business insurance cover- 
ing injury to a student. 

Statutory Authority G. S. 20-322 through 20-324. 

SECTION .0300 - SCHOOL LOCATION: 
PHYSICAL FACILITIES: AND 
COURSES OF INSTRUCTION 

.0307 COURSES OF INSTRUCTION 

Commercial driver training schools are autho- 
rized to teach the following courses: 

(1) For unlicensed persons 18 years of age or 
older, a course as follows: 

(a) Classroom Instruction. A minimum of 
six hours, including (but not limited to) 
rules of the road and other laws affect- 
ing the operation of motor vehicles, 
safe driving practices, pedestrian safety, 
and the general responsibilities of the 
driver. 

(b) Behind-the- Wheel Instruction. A mini- 
mum of six hours, including instruction 
and practice in all the basic physical 
skills necessary for proper control of a 
motor vehicle in all normal driving 
situations, such as starting, stopping, 
steering and turning, controlling the 
vehicle in traffic, backing, and parking. 
A valid learner's permit issued by the 
Driver License Section of the Division 
is required. 

(c) A person holding a valid learner's 
permit issued by the Driver License 
Section of the Division shall not be 
required to take the six hours of class- 
room instruction set forth in (l)(a) of 
this Rule. 

(d) A person holding a valid learner's 
permit or driver's license issued by the 
Driver License Section of the Division 
may contract for any portion of the six- 
hour behind-the-wheel instruction. 

(2) For licensed persons a course for purpos- 
es of driver improvement, such as im- 
proving their knowledge and skill in the 
operation of a motor vehicle. A person 
holding a valid learner's permit issued by 



the Driver License Section of the Divi- 
sion shall not be required to take the six 
hours of classroom instruction. 
(3) For unlicensed persons under the age of 
18 years, a course which must be ap- 
proved by the Commissioner and the 
State Superintendent of Public Instruction 
as follows: 

(a) Classroom Instruction shall not include 
workbook assignments or other work 
out of the presence of an instructor. A 
minimum of 30 hours shall be taught, 
consisting of instruction in: 

(i) highway transportation: its social and 

economic influence upon life in 

America; 
(ii) drivers: their physical and mental 

characteristics and how their 

capabilities and limitations influence 

the traffic scene; 
(iii) the automobile: its construction, 

maintenance, and safe operation; 
(iv) traffic law and enforcement: laws of 

nature and man-made laws; and their 

relationship to traffic safety; 
(v) pedestrians and bicycles: their 

influence upon the traffic scene; 
(vi) engineering: its influence upon 

automobiles, highways, traffic 

controls, and people; 
(vii) driving while impaired: six hours of 

instruction on the effects of drinking 

upon driving and upon accident and 

death rates; and 
(viii) rights and privileges of handicapped 

persons; their rights to use flags, 

placards, cards, license plates, and 

parking places. 

(b) Behind-the-Wheel Instruction. A 
minimum of six hours, actually under 
the wheel, including: 

(i) femiliarization with the automobile; 
the use of its controls; and the 
development of skills essential to safe 
operation in traffic; and 

(ii) driving in traffic with the instructor in 
a dual control car to develop abilities 
needed to follow the soundest course 
of action in responding to complex 
situations. 

(c) Restrictions: 

(i) Behind-the-Wheel instruction shall be 
ofl'ered to a student only after he has 
successfully completed the classwork 
section. If a student has contracted for 



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PROPOSED RULES 



both classwork and behind-the-wheel 
training, behind-the-wheel training 
may begin after classwork starts and 
before classwork has been completed. 
At no time shall a student be taken 
out of class to attend behind-the-wheel 
training. 

(ii) No student shall operate a motor 
vehicle upon any public street or 
highway unless such student shall 
have in his immediate possession a 
valid Restricted Instruction Permit 
issued by the Division. 

(iii) No more than three hours of behind- 
the-wheel training shall be given in 
any one day. A written record 
indicating the date and time of this 
training shall be kept on file for each 
student. The record must be signed 
by the student and shall not include 
any hours of observation of other 
students, i.e. mere presence in the car 
while someone else is driving, 
(d) Other requirements: 

(i) Plans for the content of the 
curriculum, its organization, and 
presentation shall be submitted on 
Form SBTS-610 for the approval of 
the Commissioner and the State 
Superintendent of Public Instruction. 
In addition, lesson plans for each of 
the 30 hours must be submitted. 

(ii) Textbooks for use in the classwork 
section shall be chosen from those 
approved by the State Superintendent 
of Public Instruction. 

(iii) Instructors must be approved by both 
the Commissioner and the State 
Superintendent of Public Instruction. 

(iv) All expenses incurred in offering and 
teaching these courses shall be paid 
by the persons enrolled therein or the 
school offering the course. 

(v) A student may enroll for either the 
classroom work or behind-the-wheel 
instruction, or both. A school may 
accept certification of satisfectory 
completion of classroom instruction 
from any school authorized to offer 
such a course, provided the certificate 
(Form SBTS-611A) is signed by the 
principal of the public school, or the 
superintendent of the administrative 
unit of which it is a part, or the 
executive ofl^cer of a non-public 



secondary school. All SBTS-611A 

forms shall be mailed or taken 

directly to the high school for 

completion by the commercial school 

owner or instructor. Under no 

circumstances shall the form be given 

to the student. 

(vi) Schools offering this course shall 

issue to their students upon 

satisfactory completion of either or 

both parts of the course a certificate 

furnished by the Division (Form 

SBTS-611). This certificate verifies 

only the training taught by the 

commercial school. The student's 

name on this certificate must be as it 

appears on his birth certificate. 

Schools shall be accountable to the 

Division for all certificates issued to 

them. 

(vii) The student, upon submitting 

certification of satisfactory completion 

of both parts of the driver education 

course, shall be eligible for licensing 

as provided by law. Such 

certification may be from either or 

both a public or non-public secondary 

school or a commercial driver training 

school. 

(viii) Schools shall submit reports to the 

Division, as may be required by the 

Division; and their books and records 

shall be open to inspection by 

Division representatives at ail 

reasonable times. 

(e) A person satisfactorily completing the 

thirty and six hour course who desires 

additional training may contract for any 

portion of the six-hour behind-the-wheel 

instruction. 

(4) For licensed persons taking a course 

offered by a restricted commercial driver 

training school, the following courses are 

authorized: 

(a) curriculum for evaluation and 
improvement for licensed adult drivers 
only, utilizing over-the-road observation 
in vehicles not owned by the school or 
equipment such as driving simulators; 

(b) professional curricula, including one or 
more of the following: 

(i) police pursuit driving, 

(ii) auto-cross driving, 

(iii) emergency-vehicle driving, or 

(iv) road and track racing. 



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PROPOSED RULES 



(5) Instructor training program, the 
requirements for which are: 

(a) the school must be licensed one full 
year prior to approval; 

(b) all work must be with an instructor 
licensed as an Instructor Trainer; 

(c) a proposed plan of operation must be 
submitted to the Division outlining the 
training schedule, including instruction 
in: 

(i) using effective teaching methods, 

(ii) writing lesson plans, 

(iii) reviewing of Rules Governing the 

Licensing of Commercial Driver 

Training Schools and Instructors, 
(iv) using audio visual equipment and 

teaching aids, 
(v) filling out fully and properly all 

commercial school forms, and 
(vi) listing names of Instructor Trainers to 

be employed for the training program. 

Statutory Authority G. S. 20-322 through 20-324. 

SECTION .0500 - REQUIREMENTS AND 

APPLICATIONS FOR DRIVER 

TRAINING INSTRUCTOR 

.0501 REQUIREMENTS 

(a) Each instructor of a commercial driver 
training school or branch shall: 

(1) be of good moral character; 

(2) have at least four years of experience as 
a licensed operator of a motor vehicle; 

(3) not have been convicted of a felony or 
convicted of a misdemeanor involving 
moral turpitude in the 10 years 
immediately preceding the date of 
application; 

(4) not have had a revocation or suspension 
of his driver's license in the five fe«f 
years immediately preceding the date of 
application^ and not have had a 
revocation or suspension for DWI for a 
period of seven years ; 

(5) have graduated from high school or 
hold a high school equivalency 
certificate; 

(6) not have had convictions for moving 
violations totaling five seven or more 
points in the three years preceding the 
date of application; 

(7) have completed the 80-contact-hour, 
community-college course for driver 
education teachers; an equivalent course 



approved by the Commissioner, or an 
Instructor Trainer Program conducted 
by an approved Commercial Driver 
Training School within four years prior 
to application ; 

(8) successfully complete the written test 
administered by a Driver Education 
Specialist; (Allowed only one retest); 

(9) successfully complete the Miller Road 
Test given by a Driver Education 
Specialist; (Allowed only one retest); 

(10) be given a three month probation period 
until evaluated and recommended by a 
Driver Education Specialist; 

(11) submit a criminal background check 
from the Clerk of Court for each 
county of residence for the past ten 
years . 

(b) An applicant may apply for an instructor's 
learner's permit which would be valid for three 
months. To be eligible for an instructor's 
learner's permit, the applicant shall meet 
requirements Subparagraph (a) (1) through (6); and 
shall: 

(1) submit an Instructor Application with 
an eight dollar ($8.00) application fee, 
copy of high school diploma or high 
school equivalency certificate, and 
physical examination form; 

(2) successfully complete 40 hours of 
classwork as a student at an approved 
commercial driver training school to 
consist of: 

(A) 30 hours in the basic driver education 
classwork; 

(B) an additional 10 hours in practice 
teaching. writing lesson plans, 
reviewing the rules of this 
Subchapter, use of audio visual 
equipment and teaching aids and 
familiarization of commercial school 
forms; 

(3) successfully complete six hours of 
behind-the- wheel training as a student 
at an approved commercial driver 
training school; 

(4) successfully complete six hours of 
observation of behind-the-wheel 
instruction of a new driver by a 
licensed instructor trainer; 

(5) successfully complete the written test 
administered by a Driver Education 
Specialist; (Allowed only one retest); 

(6) successfiilly complete the Miller Road 
Test given by a Driver Education 



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PROPOSED RULES 



Specialist; (Allowed only one retest); 

(7) after completing Subparagraphs (b) (1) 
through (6) practice teach in the 
presence of an instructor trainer; 

(8) successfiilly complete two hours of 
classroom instruction while being 
observed by a Driver Education 
Specialist; 

(9) successfully complete two hours of 
behind-the-wheel instruction while 
being observed by a Driver Education 
Specialist; 

(10) be recommended by a Driver Education 
Specialist to receive an instructor's 
license. 

(c) An instructor at an approved commercial 
driver training school may apply for an Instructor 
Trainer license. The Instructor Trainer shall: 

(1) have five consecutive years as an active 
licensed instructor; 

(2) submit an application for Instructor 
Trainer License with a fee of eight 
dollars ($8.00); 

(3) complete two hours of classroom 
observation by a Driver Education 
Specialist while training instructors, not 
driver education student; 

(4) complete two hours of behind-the-wheel 
observation by a Driver Education 
Specialist while training instructors, not 
driver education students; 

(5) successfully complete the written test 
administered by a Driver Education 
Specialist; (Allowed only one retest); 

(6) successfully complete the Miller Road 
Test given by a Driver Education 
Specialist; (Allowed only one retest); 

(7) be recommended by a Driver Education 
Specialist; 

(8) requalify each school year. 

Statutory Authority G. S. 20-322 through 20-324. 

.0503 RENEWAL APPLICATION 

(a) Renewal application shall be made by an 
instructor annually between May 1 and June 10 of 
each year. All licenses expire on June 30 of each 
year, and no instructor is permitted to operate with 
an expired license. However, applications for 
renewal may be accepted for up to 30 days from 
the date of expiration. Any license expired for 
more than 30 days shall be deemed permanently 
lapsed; and renewal of such license must be by the 
same process as required for an entirely new 
license, with all forms and certifications being 



required. 

(b) At least once every four years, an instructor 
must take the two-semester-hour college credit 
course required for the original license; provided, 
however, that an equivalent number of hours (64) 
(40) can be substituted for this course in the 
following manner: 

(1) 16 +3 hours (four three for each full 
year of the four years) for active and 
continuing teaching of driver education; 

(2) 48 38 or more hours for attendance at 
teacher training workshops and short 
courses, professional driver training 
meetings and conferences in the field of 
driver education which have been 
approved in advance by the School Bus 
and Traffic Safety Section. Approval is 
to be given in the following manner: 

(A) Pre-Course (submit for approval): 

(i) name and address of agency 

sponsoring the workshop, course 

or conference; 
(ii) title, dates, and location of the 

workshop, course, or conference; 
(iii) brief description of the workshop, 

course, or conference, including 

the number of hours; 

(B) Post-Course (submit for approval and 
credit) : 

(i) proof of attendance, number of 
contact hours actually attended, 
and passing grade (if applicable); 

(ii) brief evaluation of the workshop, 
course, or conference. 

(c) An accredited driver education teacher with 
a current certificate based on the requirements of 
the Department of Public Instruction is exempted 
from the requirements of Paragraph (b) of this 
Rule. 

Statutory Authority G. S. 20-322 through 20-324. 

SECTION .0600 - COIVTRACTS 

.0601 REQUIREMENTS 

Commercial driver training school contracts with 
students shall contain (but are not limited to) the 
following information: 

(1) the agreed total contract charges and full 
terms of payment thereof; 

(2) the number, nature, time and extent of 
lessons contracted for, including: 

(a) classroom instruction: 
(i) rate per hour; 
(ii) date and time of first lesson and each 



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PROPOSED RULES 



(iii) 



subsequent lesson, the length of each 
lesson, and the total number of hours; 
type of instruction; 



(i) 
(ii) 



(iii) 



(iv) 



(b) behind-the-wheel instruction: 
rate per hour; 

date and time of first lesson and each 
subsequent lesson, the length of each 
lesson, and the total number of hours; 
nature of lessons, whether private or 
group (no group may consist of more 
than the instructor and two students); 
rate for use of school vehicle for a 
driver's license road test, if an extra 
charge is made; 

(3) a statement which reads substantially as 
follows: "This agreement constitutes the 
entire contract between the school and 
the student, and any verbal assurances or 
promises not contained herein shall bind 
neither the school nor the student."^ and 

(4) a statement which reads as follows: 
"This school is licensed by the State of 
North Carolina, Division of Motor 
Vehicles." 

If either the school or the instructor fails to 
comply with the provisions of any contract or 
agreement between the school and the student, the 
school shall refund, on a qto rata basis, all monies 
collected from the student as consideration for the 
performance of the contract or the agreement. 

Statutory Authority G. S. 20-322 through 20-324. 

.0602 PROfflBITED CONTRACT 
PROVISIONS 

{a) Commercial driver training school contracts 
shall not contain the following: 

(1) the statement "no refund" or its 
equivalent; The contract may, however, 
contain a statement that "The school will 
not refund any tuition monies or any part 
thereof when actual services have been 
rendered"; 

(2) any statement to the effect that a driver's 
license is guaranteed or otherwise 
promised as a result of the driver's 
license training course. 

^fe) — If e ither th e school or th e inetructor fails to 
comply with the provisions of any oontraot or 
agr e ement between the s chool and th e stud e nt, th e 
school shall refund, on a pro rata basis, all moni e s 
coll e ct e d from th e student as oonsid e mtion for th e 
p e rformanc e of the contract or th e agr e em e nt. 

Statutory Authority G. S. 20-322 through 20-324. 



SECTION .0700 - BONDING 
AND ADVERTISING 

.0701 BONDS 

Prior to license approval, a school shall file with 
the Division a continuous "cash" or "surety" bond 
written by a company licensed to do business in 
North Carolina in the amount of five thousand 
dollars ($5, (XX)) two thousand fiv e hundred dollars 
($2,500) to indemnify any student against loss or 
damage arising out of the school's breach of 
contract between the school and the student (Form 
SBTS-606). 

Statutory Authority G.S. 20-322 through 20-324. 

.0703 ADVERTISING 

A commercial driver training school may 
advertise by whatever method it sees fit with the 
following exceptions: 

(1) The address of a telephone-answering 
service, when it is not the same as the 
principal place of business of the school, 
shall not be shown in any medium of 
advertising or telephone directory. Nor 
shall any telephone directory listing or 
yellow page advertisement show a 
telephone number for a school unless it 
also shows a valid address^ including the 
city, for the principal place of business of 
the school. 

(2) No advertisement shall indicate in any 
way that a school can or will issue or 
guarantee the issuance of a driver's 
license, or imply that preferential or 
advantageous treatment from the Division 
can be obtained. 

(3) A school may state in an advertisement 
that it has been approved and licensed by 
the Division. 

Statutory Authority G.S. 20-322 through 20-324. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

CHAPTER 26 - LICENSING BOARD 
OF LANDSCAPE ARCHITECTS 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Landscape Architects intends to amend rule cited 
as 21 NCAC 26 .0105. 



95 



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PROPOSED RULES 



The proposed effective date of this action is July 
1. 1994. 

Ihe public hearing will be conducted at 10:00 
a.m. on May 2, 1994 at the N. C. Board of Land- 
scape Architects, 3733 Benson Drive, Raleigh, NC 
27609. 

Reason for Proposed Action: Raise fees to cover 
costs. 

i^omment Procedures: Written convnent must be 
submitted up to and including May 16, 1994 to the 
N. C. Board of Landscape Architects, 3733 Benson 
Drive, Raleigh, NC 27609. 

SECTION .0100 -STATUTORY AND 
ADMINISTRATIVE PROVISIONS 

.0105 FEES 

(a) Application fees shali be as follows: 

(1) For registration as a Landscape Archi- 
tect - one hundred dollars ($100.00). 

(2) For corporate certificate of registration 
- one hundi^ dollars ($100.00). 

(b) The Certificate of Permit for a temporary 
permit shall be one hundred fifty dollars 
($150.00). 

(c) Examination fees shall be thre e hundr e d 
ninety fiv e dollaro ($395.00) four hundred fifty 
dollars ($450.00) for a complete examination, and 
shall be paid prior to the examination. 

(d) Fees for portions of examinations will be 
based on the actual charges to the board for pro- 
curing, administering and grading the portion of 
the exam. The fees shall be paid prior to the 
examination. 

(e) The fee for license by reciprocity shall be 
one hundred fifty dollars ($150.00). 

(f) The fee for a corporate certificate of registra- 
tion shall be two hundred dollars ($200.00). 

(g) The fee for the annual renewal of any 
certificate of registration shall be s e v e nty — fij.« 
dollars ($75.00) one hundred dollars ($100.00) . 

(h) Annual renewal fees received after July 1 of 
each year shall be subject to the assessment of a 
late payment penalty according to the following 
schedule: 

(1) After July 1 - ten dollars ($10.00); 

(2) After September 1 - fifteen dollars 
($15.00); 

(3) After October 1 - twenty dollars 



($20.00); 

(4) After November 1 - twenty five dollars 
($25.00); 

(5) After December 1 - thirty dollars 
($30.00); 

(6) After January 1 - thirty five dollars 
($35.00); 

(7) After February 1 - forty dollars 
($40.00); 

(8) After March 1 - forty five dollars 
($45.00); 

(9) After April 1 - fifty dollars ($50.00). 
(i) The fee for re-issue of a lost or damaged 

certificate or permit is ten dollars ($10.00). 

Statutory Authority G.S. 89A-3(c); 89A-6. 

CHAPTER 50 - BOARD OF EXAMINERS 

OF PLUMBING, HEATING AND FIRE 

SPRINKLER CONTRACTORS 

Jylotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Examiners of 
Plumbing, Heating and Fire Sprinkler Contractors 
intends to amend rule cited as 27 NCAC 50 .0306; 
and adopt rule cited as 21 NCAC 50 .1104. 

Ihe proposed effective date of this action is 
August 1, 1994. 

Ihe public hearing will be conducted at 8:30 
a.m. on June 8, 1994 at the State Board of Exam- 
iners of Plumbing, Heating and Fire Sprinkler 
Contractors, 801 Hillsborough St., Suite 403, 
Raleigh, NC 27603. 

Reason for Proposed Action: 

21 NCAC 50 .0306 - To clarify type and extent of 

practical experience required of applicant for 

examination. 

21 NCAC 50 .1104 - To recover cost of providing 

documents and returned checks. 

(comment Procedures: Persons wishing to present 
oral data, views or argument on a proposed rule 
or rule change may file a notice with the Board at 
least 10 days prior to the public hearing at which 
the person wishes to speak. Comments should be 
limited to 10 minutes. The address of the Board is 
801 Hillsborough St., Suite 403, Raleigh, N.C. 



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96 



PROPOSED RULES 



Written comments or arguments may be presented 
at any time before June 8, 1994. 

SECTION .0300 - EXAMEVATIONS 

.0306 APPLICATIONS: ISSUANCE OF 
LICENSE 

(a) All applicants for regular examinations shall 
file an application in the office of the executive 
secretary on or before the date set out on the 
examination application form, which date shall be 
no more than 60 days prior to the examination. 

(b) Applicants for the October 1990 each plumb- 
ing or heating examination shall present evidence 
at the time of application on forms provided by the 
Board to establish six months two years on-site 
full-time experience in the installation, mainte- 
nance, service or repair of plumbing or heating 
systems related to the category for which license is 
sought, whether or not license was required for the 
work performed. On e y e ar of exp e ri e nc e will b e 
requir e d of applicant for th e April 1991 e xamina 
tions, 18 months e xp e ri e nc e for th e Octob e r 1991 
e xamination, and two yoaro of exporiono e for th e 
April 1992 e xamination and e xaminations conduct 
e d th e reaft e r. After review, the Board may re- 
quest additional evidence. Up to one-half the 
experience may be in academic or technical train- 
ing directly related to the field of endeavor for 
which examination is requested. The Board will 
pro rate part-time work of less than 40 hours per 
week or part-time academic work of less than 15 
semester or quarter hours. Practical experience 
should directly involve plumbing or heating sys- 
tems and may include work as a field superinten- 
dent, project manager, journeyman, mechanic or 
plant stationary operator directly involved in the 
installation, maintenance, service or repair of such 
systems. Work as a local government inspector of 
plumbing or heating systems while qualified by the 
Code Officials Qualification Board, work as a field 
representative of this Board or work by a graduate 
of an ABET accredited engineering or engineering 
technology program with direct on-site involve- 
ment with plumbing or heating system construc- 
tion, construction supervision, plant engineering or 
operation may utilize such work as evidence of 
practical experience; provided that Board members 
and employees may not sit for examination during 
their tenure with the Board. 

(c) Applicants who obtain a license will receive 
a certificate issued by the Board, bearing the 
license number assigned to the qualifying individu- 
al. 

(d) Fire Sprinkler contractors will meet experi- 



ence requirements in accordance with Nicet exami- 
nation criteria. 

Statutory Authority G.S. 87-18; 87-21 (b). 

SECTION .1100 -FEES 

.1104 FEES FOR COPIES OF RECORDS 
AND RETUIWED CHECKS 

The Board charges the following fees: 
(1) copy of the Register of Licensees ; ^ 
4.00 each 



12} 
ill 
i4j 



copies of license ; 15.00 
abstract of license record 



15.00 



processing fee for returned checks ^ 
20.00 



Statutory Authority G.S. 25-3-512; 87-18; 
150B-19. 






* * * 



CHAPTER 54 - BOARD OF PRACTICING 
PSYCHOLOGISTS 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Psychology 
Board intends to adopt rules cited as 21 NCAC 54 
.2701 - .2703. 

1 he proposed effective date of this action is July 
1. 1994. 

1 he public hearing will be conducted at 11:00 
a.m. on May 2, 1994 at the Lucy D. Inman Con- 
ference Room, 1004 Dresser Court, Ste. 105, 
Raleigh, N. C. 

Mxeason for Proposed Action: 
21 NCAC 54 .2701 - To define health services. 
21 NCAC 54 .2702 - To set requirements for 
making application as a health service provider 
prior to June 30, 1994. 

21 NCAC 54 .2703 - To require display of certifi- 
cate. 

i^omment Procedures: Comments may be submit- 
ted in writing or in person at the public hearing or 
in writing prior to May 17, 1994 to Martha Storie, 
Executive Director, N. C Psychology Board, 
University Hall, Appalachian State University, 
Boone. NC 28608. 



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PROPOSED RULES 



hiditor's Note: Rule .2701 was filed as a tempo- 
rary rule effective April 20, 1994 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner Rule .2702 was 
filed as a temporary rule effective April 20, 1994 
for a period of 70 days. 

SECTION .2700 - HEALTH SERVICES 
PROVIDER CERTIFICATION 

,2701 ACTIVITIES INCLUDED 

(a) Health services in psychology include the 
diagnosis, evaluation, treatment, remediation, and 
prevention of: mental, emotional, and behavioral 
disorder, disability, and illness; substance abuse: 
habit and conduct disorder; and psychological 
aspects of physical illness, accident, injury, and 
disability. Included are counseling, psycho- 
educational, and neuropsychological services 
related to the above. Health services include 
collateral contacts by a psychologist with families, 
caretakers, and other professionals for the purpose 
of benefiting a patient or client of that psycholo- 
gist, as well as, direct services by a psychologist 
to individuals and groups. 

(b) Health services in psychology do not include 
vocational and educational guidance, the teaching 
of psychology, the conduct of psychological 
research, or the provision of psychological services 
or consultations to organizations or institutions. 

Statutory Authority G.S. 90-270. 2(4)(8); 90-270.9. 

.2702 REQUIREMENTS BEFORE JUNE 30, 
1994 

£§1 To be certified as a health services provider 
psychologist (HSP-P), licensed psychologists 
holding permanent North Carolina licensure must 
provide documentation that verifies one of the 
following conditions: 

(1) The applicant is currently listed in the 
National Register of Health Services 
Providers in Psychology. 

(2) The applicant ]s a diplomate m good 
standing of the American Board of 
Professional Psychology, except for 
diplomates in industrial-organizational 
psychology. 

(3) The applicant has the equivalent of two 
years of full-time experience, as fol- 
lows: 

(A) Two years of experience are defined 
as 3000 hours of practice of which 
more than 50% was comprised of 



activities meeting the definition in 
Rule .2701(a) in this Section, with the 
remainder comprised of other forms 
of psychological practice (such as 
teaching and research), or other activ- 
ities associated with a psychology 
position (such as administration). 

(B) One year of predoctoral internship 
may be counted, but other predoctoral 
experience (such as practica) will not 
be counted. 

(C) At least one of these years must be 
postdoctoral. 

(D) Experience which will not be counted 
includes, but is not limited to. experi- 
ence which was associated with termi- 
nation from a position or major disci- 
plinary action against the applicant 
due to negligence, lack of compe- 
tence, or unethical conduct. 

£b} To be certified as a health services provider 
psychological associate (HSP-PA). licensed psy- 
chological associates holding North Carolina 
licensure must provide documentation which 
verifies that the applicant has the equivalent of two 
years of full-time experience, supervised when 
as follows: 



required. 

m 



Two years of experience are defined as 
3(X)Q hours of practice of which more 
than 50% was comprised of activities 
meeting the definition in Rule .2701(a) 
in this Section, with the remainder 
comprised of other forms of psycholog- 
ical practice (such as teaching and 
research) . or other activities associated 
with a psychology position (such as 
administration). 

(2) One year of graduate level internship 
may be counted, but other graduate 
level experience (such as practica) will 
not be counted. 

(3) At least one of these years must be at a 
post-graduate degree level. 

(4) Experience which will not be counted 
includes, but is not limited to. experi- 
ence which was associated with termi- 
nation from a position or major disci- 
plinary action against the applicant due 
to negligence, lack of competence, or 
unethical conduct. 

(c) The following documentation must be com- 
pleted and received in the Board's office prior to 
June 30, 1994: 

(1) for all applicants, a completed, nota- 
rized application form provided by the 



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98 



PROPOSED RULES 



Board and payment of the fifty dollars 
($50.00) fee; 

(2) for applicants applying under Subpara- 
graph (a)(1) of this Rule, a letter from 
the National Register of Health Services 
Providers in Psychology which verifies 
the applicant's current listing in the 
Register; 

(3) for applicants applying under Subpara- 
graph (a)(2) of this Rule, a letter from 
the American Board of Professional 
Psychology which verifies good stand- 
ing diplomate status; 

(4) for applicants applying under Subpara- 
graph (a)(3) or Paragraph (h) of this 
Rule, a listing of experience on the 
application form which satisfies the 
requirement. 

Statutory Authority G. S. 90-270. 9; 90-270. 20(e)(f). 

.2703 DISPLAY OF CERTIFICATE 

A health services provider certificate shall be 
displayed in close proximity to a licensee's licen- 
sure certificate in his/her principal place of em- 
ployment and in a place that is visible to the 
licensee's served clientele. 

Statutory Authority G.S 90-270.9; 90-270.20. 

TITLE 24 - INDEPENDENT AGENCIES 

CHAPTER 5 - STATE HEALTH 

PLAN PURCHASING 

ALLIANCE BOARD 

i\otice is hereby given in accordance with G.S. 
150B-21.2 that the State Health Plan Purchasing 
Alliance Board intends to adopt rules cited as 24 
NCAC 5 .0101 - .0102. .0200 RESERVED and 
.0301 - .0303. 

1 he proposed effective date of this action is July 
1. 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on Tuesday, May 17, 1994 at the Department 
of Insurance Annex, Hearing Room, 112 Cox 
Avenue, Raleigh, NC 27605. 

iXeason for Proposed Action: Recently passed 
legislation (House Bill 729 as ratified) which is 



Article 66 of Chapter 143 and which requires 
certain rules to be in place by July 1 , 1994. 

(comment Procedures: Written comments may be 
submitted to the Board either orally at the hearing 
or by writing to the Board and received no later 
than May 17, 1994. Written comments should be 
directed to: Robert F. Joyce, Executive Director, 
112 E. Hargett Street, Suite 101, Raleigh, NC 
27601. 

hiditor's Note: These Rules were filed as tempo- 
rary adoptions effective April 22, 1994 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

SECTION .0100 - COMMUNITY 
SPONSORS 

.0101 PURPOSE 

These Rules implement the provisions of Article 
66 of Chapter 143 of the General Statutes of North 
Carolina, Health Care Purchasing Alliance Act, as 
they relate to community sponsors. 

Statutory Authority G.S 143-626; 143-629; H.B. 
729, Article 66, ch. 143. 

.0102 SELECTION 

(a) Board Solicitation of Proposals for Commu- 
nity Sponsors. The Board may begin to solicit 



proposals on April 22. 1994. from any eligible 
organization interested in serving as a community 
sponsor of a health alliance (hereafter "alliance"). 
(h) Organizations Eligible. Non-profit organiza- 
tions operating for the purpose of furthering 
economic opportunities for small businesses shall 
be eligible to submit community sponsorship 
proposals. 

(c) Public Notice. The Board shall solicit 
proposals through newspapers, other public media, 
and by any other sufficient means U deems appro- 
priate. 

(d) Time Period for Proposal. The Board shall 
allow 120 days for submission of initial proposals 
after April 22. 1994. 

(e) Information in Proposals. Each organization 
submitting a proposal shall include the following 
information: 

(1) a brief history of the sponsoring organi- 
zation and a narrative describing the 
strengths in its ability to establish an 
alliance; 



99 



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PROPOSED RULES 



(2) an explanation of any proposed coali- 
tion with other organizations, and if a 
proposed community sponsorship is to 
be held jointly by two or more organi- 
zations, the proposal shall specify the 
physical location for the alliance and 
the division of responsibilities among 
organizations: 

(3) demonstration of an understanding of 
the function served by an alliance under 
Article 66 of Chapter 143 of the Gener- 
al Statutes of North Carolina; 

(4) a plan for solicitation and development 
of membership for an alliance and 
proper communication with member 
small employers; 

(5^ letters of support from small businesses 
and other groups supporting the 
organization's bid to be the community 
sponsor of an alliance; 

(6) a proposed market area to be served by 
the alliance and appropriate rationale 
for the counties within that market area, 
such rationale to include the factors 
listed in G.S. 143-626(1); 

(7") a timetable for accomplishment of the 
following tasks regarding the proposed 
alliance: 

(A) formation of the alliance as a private, 
non-profit corporation, appointment of 
its Board members, adoption of its 
by-laws and rules of procedure: 

(B) appointment of an executive 
director/ administrator, employment of 
staff and/or contractual arrangement 
with third parties for administrative 
and professional services: 

(C) receipt of state grant funds for start- 
up costs, purchase of office equipment 
and supplies: 

(D) development of procedures for 
enrollment, for collecting/remitting 
premium payments. and for 
communication with member small 
employers: 

(E) negotiation and development of 
contracts with Accountable Health 
Carriers; 



(F) enrollment goals and dates; and 
£G} initial enrollment in an alliance's 
qualified health care plans; 
(8) an annual budget and table of 
organization for the proposed alliance. 
(f) Board Approval : 
(1) The Board shall either approve. 



disapprove or seek further information 
on proposals within 60 days after the 
deadline for submitting proposals. The 
Board may re-advertise for new and 
additional proposals. Timelines for 
submission of new proposals and Board 
action on these proposals shall be the 
same as those established for initial 
requests under this Section; and 
(2) After review of the information 
provided under Paragraph (e) and 
Subparagraph (f)(1) of this Rule, the 
Board shall evaluate the proposal based 
on an eligible organization's 
demonstrated understanding of the 
function and operation of the alliance, 
the ability to provide an alliance 
structure which will encourage small 
business employers to become 
members, and the appropriateness of 
the proposed market area. 

Statutory Authority G.S. 143-626; 143-629; H.B. 
729, Article 66, cfi. 143. 

SECTION .0200 - ALLIANCES 
(RESERVED FOR FUTURE 
CODIFICATION) 

SECTION .0300 ACCOUNTABLE 
HEALTH CARRIERS 

.0301 PURPOSE 

These Rules implement the provisions Article 66 
of Chapter 143 of the General Statutes of North 
Carolina. Health Care Purchasing Alliance Act, as 
they relate to Accountable Health Carriers. 

Statutory Authority G.S 143-626; 143-629; H.B. 
729, Article 66, ch. 143. 

.0302 DESIGNATION PROCESS 

(a) Board Review. The Board may begin to 
review information on April 22, 1994, from any 
eligible carrier interested in being designated as an 
Accountable Health Carrier. 

(b) Carrier Seeking Designation. A carrier 
seeking designation as an Accountable Health 
Carrier for the purpose of offering qualified health 
care plans through any alliance established 
pursuant to Article 66 of Chapter 143 of the 
General Statutes of North Carolina must fulfill the 
requirements outlined in G.S. 143-629. 

(c) Designation and Accreditation Requirements. 
A carrier submitting an application (hereinafter ^ 



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April 15, 1994 



100 



PROPOSED RULES 



carrier") to the Board for designation as an 
Accountable Health Carrier for any type of 



qualified health care plan must meet the following 

requirements: 

(1) presentation of a copy of Its current 
license or certificate of authority issued 
by the NC Department of Insurance 
fhereinafter "the Department") and 
appearance on the Department's current 
list of carriers with such license or 
certificate of authority; 
submit a current financial statement 



m 



Q} 



lAl 



mi 



regarding its financial solvency verified 
by the Department of Insurance; and 
fulfill the requirements in G.S. 143- 
629(b)(2)-(10). To fulfill these 

requirements, a carrier may: 
complete forms, developed by the 
Board upon recommendation of the 
Designation Review Technical 
Advisory Committee (hereinafter "the 
Committee"), which specify the 
relevant information pertaining to any 
or all of the criteria in G.S. 143- 
629(b)(2)-(10). After review of such 
information, the Board shall make a 
determination regarding the carrier's 
fulfillment of the criteria at issue, or 
the Board shall require a hearing 
before the Committee. After such 
hearing, the Committee shall provide 
a formal written recommendation to 
the Board regarding approval or 
disapproval of a carrier's fulfillment 
of the criteria at issue; 
submit for the requirements in G.S. 
143-629(b)(2)-(8) appropriate 
accreditation certification from the 
National Committee on Quality 
Assurance and/or the Joint 
Commission on Accreditation of 
Health Care Organization, and/or 
qualification by the United States 
Department of Health and Human 
Services and/or accreditation 

other 



certification from 



any 



accreditation organization approved 
by the Department pursuant to G.S. 
143-629; 

(C) submit for the requirement in G.S. 
143-629(b)(5) accreditation 
certification from the Utilization 
Review Accreditation Commission; 
and 

(D) submit for the requirements in G.S. 



143-629(l3)(9)-(10) the required data 
elements in a format identical or 
substantially similar to ^^e Health 
Plan Employer Data and Information 
Set ("HEDIS"). 

(d) Board Evaluation. The Board shall either 
approve, disapprove or seek further information on 
a designation request within 60 days of the receipt 
of information under Paragraph c or within 60 
days after the Committee holds a hearing under 
Subpart c3(A) of this Rule. 

(e) Annual Report. Every Accountable Health 
Carrier shall, on or before the first day of April of 
each year, file with the Board a sworn statement 
by an authorized officer showing its current status 
regarding the criteria required for designation as 
described in this Section. In the event any 
Accountable Health Carrier shall fail to file any 
such annual statement or such annual statement 
shows a lack of substantial compliance with the 
designation criteria, the Board may suspend the 
carrier's designation as an Accountable Health 
Carrier until such statement shall be properly filed. 

Statutory Authority G.S. 143-626; 143-629; H.B. 
729. Article 66, ch. 143. 

.0303 DESIGNATION REVIEW 
TECHNICAL ADVISORY 
COMMITTEE 

(a) Composition. The Committee will consist of 
the Executive Director of the Board or designee, 
serving as Chairman; two representatives from the 
North Carolina Department of Insurance; and two 
individuals, appointed by the Chairman of the 
Board, who are knowledgeable about the 
accreditation process for health insurance carriers. 

(b) Meetings. Within 30 days after receipt of a 
request for a hearing, the Chairman of the 
Committee shall set a time and date for the 
hearing. With reasonable notice, the Committee 
may request additional relevant information from 
an applicant to be submitted before, at the time of. 
or after the hearing. 

Statutory Authority G.S. 143-626; 143-629; H.B. 
729, Article 66, ch. 143. 

.0304 DESIGNATION FORMS FOR 
ACCOUNTABLE HEALTH 
CARRIERS (RESERVED FOR 
FUTURE CODIFICATION) 



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RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 

Banking Commission 

4 NCAC 3F .0202 - Permissible Investments 
Agency Responded 
Agency Revised Rule 

Credit Union 

4 NCAC 6C .1401 - Signature Guarantee 
Agency Revised Rule 

ENVIRONMEI^, HEALTH, AND NATURAL RESOURCES 

Marine Fisheries 

15A NCAC 31 .0010 - Military Prohibited and Restricted Areas 

Agency Revised Rule 
15A NCAC 3J .0107 - Pound Nets 

Agency Revised Rule 
15A NCAC 3K .0301 - Size and Harvest Limit 

Agency Revised Rule 
15 A NCAC 30 .0102 - Procedure and Requirements to Purchase License 

Agency Revised Rule 
15A NCAC 30 .0204 - Marking Shellfish Leases and Franchises 

Agency Revised Rule 
15A NCAC 30 .0205 - Lease Renewal 

Agency Revised Rule 

Soil and Water Conservation Commission 

15A NCAC 6F .0001 - Purpose 

Agency Revised Rule 
15 A NCAC 6F .0003 - Requirements for Certification of Vhste Mgmi Plans 

Agency Revised Rule 
15A NCAC 6F .0004 - Approved Best Management Practices (BMPs) 

Agency Revised Rule 
15A NCAC 6F .0005 - Technical Specialist Designation Procedure 

Agency Revised Rule 

Wildlife Resources and Water Safety 

15A NCAC WD .0002 - General Regulations Regarding Use 
Agency Withdrew Rule 



RRC Objection 12/16/93 
Obj. Cont'd 01/20/94 
Obj. Removed 02/17/94 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



02/17/94 
02/17/94 



02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 



02/17/94 
02/17/94 
02/17/94 
02/17/94 
01/20/94 
02/17/94 
01/20/94 
02/17/94 



03/17/94 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



102 



RRC OBJECTIONS 



HUMAN RESOURCES 

Aging 

10 NCAC 22T .0101 - Scope of Health Screening Services 

Agency Revised Rule 
10 NCAC 22T .0201 - Provision of Health Screening Services 

10 NCAC 22U .0101 - Scope of Senior Companion 

Agency Revised Rule 
10 NCAC 22W .0101 - Scope of Home Care Services 

Agency Revised Rule 

Medical Assistance 

10 NCAC 261 . 0304 - Hearing Procedures 

Agency Revised Rule 

mSURANCE 

Financial Evaluation Division 

U NCAC lie .0308 - Foreign HMO: Successful Operation 
Agency Revised Rule 

11 NCAC IIF .0207 - Specific Standards for Morbidity, Interest and Mortality 

Agency Revised Rule 
11 NCAC 1 IF .0208 - Reserves for Wiiver of Premium 
Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Certified Public Accountant Examiners 

21 NCAC 8 A .0105 - Purposes and Responsibilities 

Agency Repealed Rule 
21 NCAC 8F .0103 - Filing of Examination Applications and Fees 

Agency Revised Rule 
21 NCAC 8F .0112 - Candidate's Request to Sit in Another Jurisdiction 

Agency Revised Rule 
21 NCAC 8G .0409 - Computation of CPE Credits 

Agency Revised Rule 
21 NCAC 81 .0008 - Firm Registration 

Agency Revised Rule 
21 NCAC 8N .0103 - CPAs Outside North Carolina 

Agency Withdrew Rule 

Landscape Architects 

21 NCAC 26 .0209 - Unprofessional Conduct 

Agency Revised Rule 
21 NCAC 26 .0210 - Dishonest Practice 

Agency Revised Rule 
21 NCAC 26 .0211 - Incompetence 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



01/20/94 
02/17/94 
01/20/94 
02/17/94 
01/20/94 
02/17/94 
02/17/94 
03/17/94 



03/17/94 
03/17/94 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 

03/17/94 



01/20/94 
02/17/94 
01/20/94 
02/17/94 
01/20/94 
02/1 7/94 



103 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



RRC OBJECTIONS 



Medical Examiners 



21 NCAC 32B .0402 - Fee 

Agency Revised Rule 
21 NCAC 32B .0706 - Fee 

Agenq,' Revised Rule 
21 NCAC 32M .0006 - Prescribing Privileges 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
02/17/94 
02/17/94 



REAL ESTATE APPRAISAL BOARD 



21 NCAC 57 A . 0210 - Temporary Practice 

Agency Revised Rule 
21 NCAC 57B . 0207 - Administration 

Agency Revised Rule 
21 NCAC 57B .0306 - Instructor Requirements 

Agency Revised Rule 
21 NCAC 57B .0603 - Criteria For Course Approval 

Agency Revised Rule 
21 NCAC 57C .0104 - Petition to Reopen Proceeding 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



REVENUE 



Individual Income Tax Division 



17 NCAC 6B .0612 - Tax Credit for Qualified Business Investments 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 



STATE PERSONNEL 
Office of State Personnel 

25 NCAC ID .0211 - Salary Rate RRC Objection 02/17/94 

Agency Revised Rule Obj. Removed 02/1 7/94 

25 NCAC ID .0512 - Policy Making/Conjidential Exempt Priority Consideration RRC Objection 02/17/94 

Agency Revised Rule Obj. Removed 03/1 7/94 

STATE TREASURER 

Collateralization of Deposits 



20 NCAC 7 .0202 - Amount of Collateral Required to be Pledged 

Agency Revised Rule 
20 NCAC 7 .0603 - Acceleration of Maturities 

Agency Revised Rule 



RRC Objection 03/17/94 

Obj. Removed 03/17/94 

RRC Objection 03/17/94 

Obj. Removed 03/17/94 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



104 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTHt CITATION 



ALCOHOLIC BEVERAGE CONTROL COMNOSSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 
Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 
Russell BetTianl Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 
Edwani Ogunjobi. Club Piccadilli v. Alcoholic Beverage Control Comm. 
Robert Kovalaske, Nick Pikoulas, Joseph MarshburTi, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Bever:age Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limife, Inc. 

COMMERCE 

Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of CotTisction 

CRIME CONTROL AND PUBLIC SAFETY 

Crime Victims Compensation Commission 

James Hugh B^nes v. Crime Victims Compensation Commission 
James A. Canady v. Crime Victims Compensation Commission 
Virginia Roof v. Department of Crime Control & Public Safety 
Mary E. Haskins v. Crime Victims Compensation Commission 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0906 


Marm 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1485 


Mann 


03/11/94 



93 COM 1622 Chess 



93 CPS 0801 
93 CPS 1108 

93 CPS 1347 

94 CPS 1406 



ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 
Coastal Management 

Gary E. Montalbine v. Division of Coastal Management 93 EHR 1792 

Environmentai Health 

Environment, Health, & Natural Res. v. Clark Harris S^ Jessie Lee Harris 93 EHR 0924 

Environmental Management 

Petroleum Installation Equipment Co., Inc. v. Env., Health &. Nat. Res. 93 EHR 0531 

Jack Griffin v. Dept. of Environment, Health, and Natural Resources 93 EHR 1030 

Solid Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 

HUMAN RESOURCES 

Division of Child Development 

Judith Fridley v. Div of Child Development/ Abuse/Neglect Unit 93 DHR 0973 

Gloria C. Haith v. Department of Human Resources 93 DHR 1707 



03/01/94 



94 DOC 0252 Morrison 03/21/94 



West 03/28/94 

Gray 03/28/94 

Nesnow 03/24/94 

Gray 03/17/94 



Nesnow 03/21/94 



Becton 03/03/94 



Chess 03/21/94 

Becton 03/21/94 



93 EHR 095 1 Gray 03/28/94 



9:2 NCR 114 



Morrison 03/08/94 
Nesnow 03/22/94 



105 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Living Woid Day Care, Jonathan LankfonJ v. Dept. of Human Resources 

Facility Services 

Presbyterian- Orthopaedic Hospital v. Department of Human Resources 

Division of Medical Assistance 

Division of Medical Assistance v. Catawba Cty Dept. of Social Services 

Division of Social Services 

Child Enforcement Section 

William Heckstall v. Department of Human Resources 
Bryan Jeffrey Cole v. Department of Human Resources 
Dexter L. Chambers v. Department of Human Resources 
Ronald E. Johnson v. Department of Human Resources 
Antonio Townsend v. Department of Human Resources 
Troy E. Pinkncy v. Department of Human Resources 
Walter Lee Corbett v. Department of Human Resources 
Nash Andrew Newsome v. Department of Human Resources 
Samuel L. Dodd v. Department of Human Resources 

JUSTICE 

Alarm Systems Licensing Board 

Alarm Systems Licensing Boaid v. George P. Baker 

Private Protective Services Board 

Larry C. Hopkins v. Private Protective Services Boaid 

Training and Standards Division 

Curtiss Lance Poteat v. Criminal Justice Ed. & Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Slds. Comm. 
Gregory Blake Mannii^ v. Criminal Justice Ed. & Training Stds. Comm. 

PUBLIC EDUCATION 

Nancy Watson v. Boaid of Education 

Janet L. Wilcox v. Carteret County Boaid of Education 

STATE HEALTH BENEFITS OFFICE 

Timothy L. Coggins v. Teacheis* & St Erap Comp Major Med Plan 

STATE PERSONNEL 

Agricultural and Technical State University 

Linda D. Williams v. Agricultural and Technical State University 
Juanila D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State Univereity 

Department of Commerce 

Ruth Daniel-fcrry v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0168 


Nesnow 


03/23/94 



PUBLISHED DECISION 
REGISTER CITATION 



93 DHR 0805 



93 DHR 1778 



93 DOJ 0457 



93 DOJ 1618 



93 DOJ 0231 

93 DOJ 1409 

94 DOJ 0048 



93 EDO 0234 
93 EDO 0451 



93 INS 0929 



93 OSP 0725 



91 OSP 1287 



Reilly 



West 



Chess 



Chess 



03/11/94 



03/04/94 



93 CSE 1077 


Reilly 


03/14/94 


93CSE 1091 


Bee ton 


03/30/94 


93 CSE 1 124 


West 


03/28/94 


93 CSE 1 125 


Becton 


03/30/94 


93 CSE 1139 


Bee ton 


03/30/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1357 


Gray 


03/31/94 



Nesnow 03/10/94 



Morrison 03/07/94 



Chess 03/28/94 

Gray 03/03/94 

Gray 03/29/94 



Chess 02/28/94 

Mann 02/21/94 



Morrison 03/04/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 



03/04/94 



02/22/94 



9:2 NCR 108 



9:1 NCR 63 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



106 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Crime Control and Public Safety 

Fred L. Kcamo,' v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Da\'is v. Department of Human Resources 

Da\id R. Rodgers v. Timmy Summer^'ille, Stonewall Jackson School 

Mental Bealth/Mental Retardation 

Yvonne G. Johnson v. Blue Ridge Mental Health 

Department of Transportation 

Gleim I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportelion 
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transporation 
Betsy Johnston Powell v. Department of Transportetion 
Cl)de Lem Hairston v. Department of Transportetion 

STATE TREASURER 

Retirement Systems Division 

John C. Russell v. Bd.'TrusleesrTeacheis' & State Employees' Ret. Sys. 
Robert A. Slade v. Bd. Trustees /N.C. Local Gcvtl. Emp. Ret. System 
Elizabeth M. Dudl^' v. Bd./Trusteesrreachers' & Slate Emplcyees" 
Retirement System 



91 OS? 0401 

92 DSP 1463 



93 OSP 1604 



West 

Reilly 



Bee ton 



03/18/94 
03/21/94 



93 OSP 0830 


Becton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


94 OSP 0087 


Chess 


03/16/94 



03/18/94 



93 OSP 0297-' 


Morrison 


03/10/94 


9:1 


NCR 


60 


93 OSP 0500*" 


Morrison 


03/10/94 


9:1 


NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 








93 OSP 0944 


Chess 


02/28/94 









93 DST 0164 


West 


03/07/94 








93 DST 0785 


Becton 


03/18/94 


9:1 


NCR 


68 


93 DST 1474 


Nesnow, 


03/28/94 









Consolidated cases. 



107 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CALDWELL 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 EDC 0234 



NANCY WATSON, 
Petitioner, 



V. 



STATE BOARD OF EDUCATION; and 
DEPARTMENT OF PUBLIC INSTRUCTION, 
Respondent. 



RECOMMENDED DECISION 



BACKGROUND 

This matter came on for hearing before Administrative Law Judge Sammie Chess, Jr. on December 
15, 1993, in Lenoir, Caldwell County, North Carolina. 

Petitioner filed a petition for a contested case hearing on February 26, 1993. Petitioner alleged that 
the Respondent denied her application for experience credit for classroom teaching in the Caldwell County 
School system from 1976 to 1991, prior to being certified as a teacher by the Respondent. 

At the conclusion of the evidence, the parties were given 45 days following the receipt of the 
transcript in which to file proposed findings of feet and conclusions of law pursuant to N.C.G.S. Section 
150B-34(b). 



APPEARANCES 

S. Luke Largess 

FERGUSON, STEIN, WALLAS, 

ADKINS, GRESHAM & SUMTER, P. A. 

Attorney at Law 

700 East Stonewall Street 

Suite 730 

Charlotte, North Carolina 

Barbara A. Shaw 
Assistant Attorney General 
N. C. Department of Justice 
P O. Box 629 
Raleigh, North Carolina 

ISSUES 



For Petitioner: 



For Respondent: 



Whether Respondent properly denied Petitioner's application for experience credit for teaching in the 
Caldwell County Schools from 1976 to 1991, prior to being certified as a teacher by the Respondent. 

STATUTES AND RULES INVOLVED 

N.C.G.S. Sections 115C-12(9)a, 295(b), -296(c), -302(e), -325(a)(6), -326, and 16 NCAC .0301- 
.0312. 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



108 



CONTESTED CASE DECISIONS 



RULING ON MOTIONS 

Respondents' Motion for Summary Judgment was denied. 

Based on a preponderance of the evidence admitted into the record of this case, including the 
testimony of witnesses and the review of exhibits, and based on the arguments of counsel, both at this hearing 
and at an earlier motion for summary judgment, the Administrative Law Judge makes the following: 

FINDINGS OF FACT 

1. The Caldwell County School System hired Petitioner in August 1976 to teach Art at three 
elementary schools within the Granite Falls Township in Caldwell County. 

2. The Caldwell County Schools paid Petitioner out of funds from the sales' proceeds of the 
Granite Falls Alcohol Beverage Control store that were specially designated for use in the public school in 
the Granite Falls Township. 

3. For many years Petitioner was the only elementary art teacher in the Caldwell County 
Schools. 

4. At the time she was hired to teach art. Petitioner did not have formal training as an educator. 
She had received private training from various artists and was well known locally for her art, including the 
portrait of a retired principal at Granite Falls Elementary School. 

5. Petitioner's impact on the children and the Caldwell County School System was of a 
profoundly positive nature. 

6. Since 1976, Petitioner has taught art to more than 20,000 students. Her other involvements 
included designing the curriculum, planning and teaching the lessons, and providing appropriate feedback. 

7. Petitioner began coursework towards a Bachelor's Degree and certification after a 1988 report 
on Granite Falls Elementary by the Southern Association of Colleges and Schools (SACS), noted her lack of 
certification as a program deficiency. SACS had studied Granite Falls several times since 1976, and had 
approved of the art program in those prior reports. 

8. Petitioner graduated magna cum laude from Lenoir Rhyne College in 1991 and applied for 
and obtained a teaching certificate from the Respondents. 

9. When applying for her teaching certificate. Petitioner asked for certificate credit for her 
teaching experience since 1976. Every certified teacher receives an experience rating as part of her certificate. 
That rating establishes the number of years of relevant work experience and determines the teachers' position 
on the state salary schedule. Teachers receive a higher salary for each year of experience. 

10. The Respondent denied Petitioner's request for experience credit, finding no record that she 
was a "teacher" during the period of time of which she sought credit. Petitioner appealed that decision. 

1 1 . Numerous witnesses testified to the fact that Petitioner has been considered a teacher by 
administrators, faculty and parents of students of the Caldwell County Schools during the entire time that she 
has taught Art. These witnesses included the superintendent, two assistant superintendents, three principals 
and two assistant principals who had supervised her, fellow teachers, and parents of her students. All of these 
witnesses testified that Petitioner was considered a teacher and had carried out the duties of a teacher since 
1976 in a most exemplary manner. 

12. The Respondents offered no evidence in opposition to this testimony about Petitioner's duties 
and performance. By all of the evidence. Petitioner's classroom performance since 1976 had been superlative. 



109 9:2 NORTH CAROLINA REGISTER April 15, 1994 



CONTESTED CASE DECISIONS 



13. The evidence showed that Petitioner is a naturally gifted teacher who put considerable effort 
and creativity into the development of her techniques for teaching art. She has a unique ability to relate her 
lessons to the individual abilities of the students. She quickly developed a teaching method in which she 
integrated the student's regular academic curriculum into their art lessons. 

14. At the hearing, several examples of this integrated technique were described by Petitioner 
and other witnesses. One student did a geometry project in high school based on an idea she had learned 
years before in Petitioner's art class. 

• 15. Petitioner was observed and her teaching performance critiqued- under the standards and 

guidelines devised by Respondents, pursuant to N.C.G.S. Section 115C-326, to measure teaching 
performance. She received an annual evaluation on the appraisal instrument used for certified teachers and 
consistently measured well on those evaluations. 

16. In addition to these evaluations, three principals, two assistant principals and a supervising 
teacher testified that Petitioner's performance was outstanding. Each of these witnesses had observed 
Petitioner's performance. Each had been trained and qualified by the Respondents in the methods used for 
evaluating teacher performance and had observed and evaluated other certified teachers as part of their job 
responsibilities. Each testified that Petitioner's work as a teacher exceeded the performance standards they 
had been trained to recognize. 

17. Petitioner is now considered a superior teacher and the evidence shows that her abilities come 
from her teaching experience between 1976 and 1991. 

18. Even the physical location of her personnel file shows that she was considered a teacher by 
her administrators. Her personnel file, containing her performance evaluations as well as other information, 
has always been maintained in a "teacher" file drawer at her school. Other non-teaching employees' files, 
including those of teacher assistants, are kept in a separate location. 

19. Petitioner was considered a teacher by the Caldwell County School in other ways as well. 

20. Her success with her integrated method of teaching art was recognized by the Caldwell 
County Schools. She was invited to present her methods to other teachers at continuing education seminars, 
for which those teachers attending received certificate renewal credits. Petitioner also presented her methods 
of teaching art to a seminar of principals and other administrators of the Caldwell County system. 

21. Petitioner attended seminars organized by the Caldwell County School for teachers to obtain 
renewal credits. She attended these continuing education seminars like any other teacher and was listed by 
the administration as a participant eligible for renewal credit. 

22. Petitioner was considered a teacher by the faculty at the schools where she worked. She 
performed teacher duties, both instructional and non-instructional, served on faculty committees and was 
selected as her school's faculty representative to system-wide committees. 

23. Respondents produced no testimony to contradict this convincing evidence that Petitioner was 
considered a teacher by the Caldwell County School and that her performance exceeded the standards expected 
of certified teachers. Indeed, two witnesses presented by the Respondent, Mr. Beane and Mr. Greene, 
confirmed that they, too, considered Petitioner to be a teacher. Mr. Greene's children had taken art from 
Petitioner and he was very pleased with Petitioner's work with his children. 

24. During the period in question, 1976 - 1991, Petitioner was paid less than the salary paid to 
teachers on the State's teacher salary scale. 

25. Petitioner's initial salary was negotiated without reference to any salary scale in the Caldwell 
County Schools as it came from an independent source of funds — the Granite Falls ABC proceeds. Petitioner 



9:2 NORTH CAROLINA REGISTER April 15, 1994 110 



CONTESTED CASE DECISIONS 



was paid less than other teachers but more than teacher assistants, except for the years immediately preceding 
her certification. In those years, the funding for her position no longer came from Granite Falls ABC funds, 
which had diminished when other ABC stores opened around Caldwell County; she was paid instead on the 
teacher assistant scale out of funds in the regular school budget. 

26. At least three vocational teachers in the Caldwell County Schools are certified and paid by 
the state as teachers, even though they do not have college degrees. These three teachers have vocational 
certificates on the basis of having four years experience in the building trades. 

27. In addition to having a certificate based on work experience, these three teachers have each 
received 10 to 12 years of certificate experience credit from Respondents based on employment in the building 
trades as masons. 

28. Respondents have other certification programs in which individuals with less than a four year 
degree are certified to teach in certain subject areas and receive experience credit for work performed without 
a college degree. JROTC instructors, for example, are certified regardless of level of education and receive 
experience credit for any classroom teaching experience in the military, without regard to certification. 

29. The Respondents also awarded a lateral entry teaching certificate in Art to a Caldwell County 
teacher with a college degree in Psychology. That teacher was certified to teach Art without an academic 
background in Art. 

30. Respondents also award experience credit for work as a Teacher's Aide performed after being 
certified as a teacher. 

3 1 . Petitioner's duties and responsibilities were those of a teacher, and exceeded the duties and 
responsibilities of a Teacher's Aide. 

After observing the witnesses as they testified and listening to the evidence presented, the undersigned 
administrative law judge makes the following additional findings of fact: 

1 . Petitioner exhibited extraordinary teaching qualities and abilities during the period 1976-1991 . 

2. Petitioner was held in the highest esteem as a teacher among parents, teachers and 
administrators. 

3. Petitioner is an unusually gifted teacher and is a credit to teachers everywhere. 
Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1 . This case is properly before the Office of Administrative Hearings, as Petitioner has presented 
a legitimate contested case issue of whether Respondents have acted improperly in denying her application for 
experience credit. 

2. Petitioner has met all of the procedural requirements for the Office of Administrative Hearings 
to review her contested case. 

3 . The feet that Petitioner was not certified to teach or paid on the teacher salary scale between 
1976 and 1991 is not dispositive for the question of whether she should receive credit now for that experience. 

4. It is clear that Petitioner succeeded as a teacher by the Respondents' own standards for 
measuring the performance of certified personnel. The evidence of the quality of her work as a teacher since 
1976 is overwhelming and uncontradicted. 



Ill 9:2 NORTH CAROLINA REGISTER April 15, 1994 



CONTESTED CASE DECISIONS 



5. From that convincing evidence, this undersigned administrative law judge concludes as a 
matter of law that Petitioner was employed as a teacher from 1976 - 1991. Respondents' arguments about 
Petitioner's salary, the absence of a college degree or certification do not persuade this Court that Petitioner 
was not a teacher during the period in question. It is accepted that Petitioner was not certified and thus was 
not paid as a certified employee; but she was, indisputably, an eff'ective, accomplished teacher. 

6. We then turn to the question of whether Petitioner should receive certificate credit for her 
work as a teacher from 1976 - 1991. 

7. Respondents have the discretionary authority to award Petitioner certificate experience credit. 
No law expressly prohibits awarding Petitioner experience credit for her work as an art teacher. 

8. The issue is whether Respondents' denial of experience credit is reasonable related to the 
purposes which experience credit serves, Guthrie y^ Taylor . 279 N.C. 703, 185 S.E.2d 193 (1971). 

9. Petitioner's teacher experience does not fit within any of Respondents' existing categories for 
experience credit that might apply to vocational teachers, JROTC instructors or lateral entry teachers. But 
the Court is convinced that awarding Petitioner experience credit would serve the same purpose as that served 
by awarding credit under these other programs. 

10. The primary purpose of experience credit is to pay more experienced personnel a higher 
salary than less experienced personnel. This salary difl^erential reflects the feet that experienced personnel 
are more valuable to a school system. 

1 1 . Petitioner is a valuable, experienced educator. It would be reasonable for her salary to reflect 
that experience. 

12. Experience credit is available to certain teachers for work experience other than certified 
teaching. This policy reflects the feet that this prior non-certified experience prepared the employee for 
his/her present role in the classroom and increased that person's ability and value as an educator. 

13. Petitioner's experience in the classroom from 1976 - 1991 prepared her for her present role 
as much as, if not more than, any form of work experience creditable under these other plans. 

14. The policies served by awarding credit in these other categories is also served by awarding 
Petitioner credit. This conclusion is supported by the feet the Petitioner's experience has been closely 
monitored and evaluated by personnel, trained by Respondents to measure teacher performance. There is no 
question about the quality or nature of the experience for which she seeks credit. 

15. Given Petitioner's proven record of accomplishment in the classroom, the Court finds that 
awarding Petitioner experience credit would serve the interests of the citizens of North Carolina in promoting 
quality in public education; and would serve those interests as strongly as any of the policy reasons that 
support awarding certificate credit under these other programs. 

16. Respondents argument that awarding Petitioner experience credit would condone her 
"unlawful" employment as a non-certified teacher is not persuasive. 

17. If her employment was unlawful because she was not certified, her employer is responsible 
for that action, not Petitioner. Denying her credit has no efl"ect on the employer. As a remedial justification, 
denial of credit is illogical and counter-productive. 

18. By good fortune, the Caldwell County Schools found a gifted and talented teacher. Petitioner 
has proven herself as an exemplary educator. The Respondents should recognize what she has accomplished 
for the students of Caldwell County and support her efforts. 



9:2 NORTH CAROLINA REGISTER April 15, 1994 112 



CONTESTED CASE DECISIONS 



19. Petitioner has performed under the watchful eye of persons trained and certified by 
Respondents to supervise teachers and to use objective standards in measuring performance. The Respondents 
should recognize that Petitioner has demonstrated her considerable skills and that she has come by them 
through her experience. Instead, Respondents censure her for exhibiting those skills prior to being certified. 

20. The Administrative Law Judge finds Respondents denial of Petitioner's application for 
experience credit to be an oppressive and manifest abuse of its discretionary authority, Pharr v^ Garibaldi . 
252 N.C. 803, 1 15 S.E.2d 18 (1960), that is not reasonable related to the purposes of experience credit. 

21. It is beyond cavil that Petitioner is a better teacher now because of her teaching experience 
between 1976 and 1991; it is irrational that her certificate does not reflect that established, irrefutable feet. 

Based on the foregoing Findings of Facts, Conclusions of Law, and a preponderance of the substantial 
evidence in the record, the Administrative Law Judge makes the following: 

RECOMMENDED DECISION 

It is recommended that Petitioner receive the following relief from Respondents: 

a. that comparable to the credit that others teaching without a college degree have received from 
Respondents, that Petitioner receive 1 1 years of experience credit for her 15 years of teaching 
from 1976 - 1991; 

b. that her salary be adjusted to reflect that experience increment, retroactive to May 1991, 
when she applied for the experience credit; and 

c. that she be awarded the cost of this action, including a reasonable attorneys fee. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of 
Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina 
General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in 
the agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and 
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the State Board of Education. 

This the 23rd day of February, 1994. 



Sammie Chess, Jr. 
Administrative Law Judge 



113 9:2 NORTH CAROLINA REGISTER April 15, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF GUILFORD 



IN THE OFFICE OF 

ADIVUNISTRATTVE HEARINGS 

93 CPS 0801 



JAMES HUGH BAYNES, 
Petitioner, 



V. 



N.C VICTIMS COMPENSATION 
COMMISSION, 

Respondent. 



RECOMMENDED DECISION 



This contested case was heard on December 20, 1993 in High Point, North Carolina. 

On December 23, 1993, Petitioner wrote the Administrative Law Judge calling attention to the 
Application he had filed with the Crime Victims Compensation Commission. The parties had stipulated that 
the Application was genuine and, if relevant and material, could be received into evidence. The Application 
was not tendered into evidence by either party. 

The Administrative Law Judge, on his own motion, re-opened the record on January 25, 1994 and 
ordered the parties to respond to questions set forth in the order re-opening the record. The parties responded 
and the record closed on February 10, 1994. As a result of the parties' representations in the letters, the 
Application filed by Petitioner with the Commission was added to the record. 

APPEARANCES 



Petitioner appeared qto se. 

Respondent was represented by Associate Attorney General Robert T. Hargett. 

ISSUES 
Did the Commission err by foiling to compensate Petitioner for the following: 



1. 



a. Future Economic Loss; 

b. Replacement Services; 

c. Physical Therapy? 



BURDEN OF PROOF 



The burden is on Petitioner to prove by the greater weight of the substantial evidence that the 
Commission erred by failing to compensate Petitioner for claims within the three categories set forth 
hereinabove. 



WITNESSES 



The following testified for Petitioner: 

James Hugh Baynes - Petitioner 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



114 



CONTESTED CASE DECISIONS 



The following testified for Respondent: 

Nancy Miller - Investigator, North Carolina Crime Victims Compensation Commission 

EXHTRITS 
The following exhibits were received into evidence: 

PI - Physician's notes from Guilford Orthopaedic and Sports Medicine Center. 

P2 - Physician's notes from Guilford Orthopaedic and Sports Medicine Center. 



P3 - Letter from Dr. Gerald Plovsky of the Internal Medicine Training Program 

at Moses H. Cone Memorial Hospital, Greensboro. 

Application Form promulgated by the North Carolina Department of Crime 
Control and Public Safety, Crime Victims Compensation Commission - filed 
by Petitioner on December 31, 1991. 

STIPULATIONS 

1 . It is stipulated that all parties are properly before the Office of Administrative Hearings and that the 
Office of Administrative Hearings has jurisdiction of the parties and subject matter. 

2. It is stipulated that all parties have been correctly designated. It is further stipulated that there is no 
question as to misjoinder or nonjoinder of parties. 

3. The Petitioner filed a timely Application for Compensation with the North Carolina Crime Victims 
Compensation Commission on December 31, 1991. 

4. The Petitioner's claim was subsequently paid by the Respondent. 

Based upon the substantial evidence admitted, the undersigned makes the following: 

FINDINGS OF FACT 

1 . Petitioner James Hugh Baynes (tereafter "Baynes") was the victim of a criminal assault on December 
8, 1991. 

2. As a result of the assault, Baynes suffered a severely comminuted displaced segmental fracture of the 
shaft of the tibia and an oblique fracture of the proximal fibula. On the same day as the assault, Baynes was 
placed under spinal anesthesia and an orthopaedic surgeon, David Dye, inserted a rod into Bayne's right tibia. 
The rod was locked into place with screws. 

3. On September 16, 1993, Dr. Dye wrote that the comminuted fracture of the right tibia was healed 
and that Baynes suffered a fifteen percent (15%) permanent, partial disability to the right tibia. 

4. On October 4, 1991, two months prior to his assault, Baynes had left his job due to pre-existing 
medical conditions. Baynes has not been employed since October 4, 1991. 

5. Baynes filed an Application with the Respondent (hereafter "Commission") on December 31, 1991 
seeking compensation for injuries suffered during the criminal assault. 

6. As a result of the application, the Commission has paid Twelve Thousand Two Hundred Twenty-one 



115 9:2 NORTH CAROLINA REGISTER April 15, 1994 



CONTESTED CASE DECISIONS 



and One Hundredth Dollars ($12,221.01) to medical care providers on Baynes' behalf to defray expenses 
Baynes incurred as a result of the criminal assault. No amounts were paid for physical therapy. 

7. Baynes was living with his parents at the time he was assaulted on December 8, 1991 and has been 
living with them since that time. Prior to his assault, Baynes helped by keeping the house up, doing yard 
work and general house maintenance. Since Baynes' assault, much of that work is not being done or is being 
done by friends or Baynes' brother-in-law. 

8. Baynes' claim for Replacement Services is based upon his inability to perform the services for his 
parents detailed in Finding of Fact #7. 

9. "Replacement services loss" is defined by G.S. 15B-2(12) to be: 

"expenses reasonably incurred in obtaining ordinary and necessary services 
in lieu of those the injured person would have performed, not for income 
but for the benefit of himself or his family, if he had not been injured." 

10. The kinds of services Baynes had been performing for his parents are compensable under G.S. 15B- 
2(12). 

1 1 . There is no evidence that the friends or brother-in-law are charging anything to perform the services. 

12. Baynes states in the Application he filed on December 31, 1991, that he is "UNEMPLOYED". 

13. "Future economic loss" is not defined by the Victims Compensation Act. Baynes is claiming, 
however, that he has suffered "Economic loss" as that term is defined by G.S. 15B-2(10). 

"Economic loss" means, "... economic detriment consisting only of 
allowable expense, work loss, and replacement services loss." 

14. "Work loss" is defined by G.S. 158-2(14) to mean, 

"... loss of income from work that the injured person would have performed 
if he had not been injured " 

15. Baynes has not lost income from work he was performing when he was criminally assaulted and 
injured. 

16. The Application filed by Baynes on December 31, 1991 states, in the part relevant to this contested 
case: 

IV. MEDICAL EXPENSES INFORMATION 

A. Brief description of injuries: "Suffered Fractures of Different Types in 6 Separate 

Locations of the Lower Right Leg (Between The Knee and the Ankle)" 



C. Will victim be needing additional treatment? 

"YES" 

If yes, describe: "Possible Physical Therapy, Orthopaedic Surgeon Will Be 
Removing a Steel Rod and Screws, Pins Etc. (1 Yr. Aprox.)" 

17. The Commission took the position in the hearing of this contested case that amounts could not be paid 
for physical therapy because physical therapy was not prescribed during the first year after Baynes' criminal 
assault. The Commission took the position that if the physical therapy had been prescribed during the year 



9:2 NORTH CAROLINA REGISTER April 15, 1994 116 



CONTESTED CASE DECISIONS 



following Baynes' injury, the expenses would have been compensable. No administrative rule or statute was 
cited for the position. 

18. G.S. 15B-1 1 (a)(2) provides that: 

"An award of compensation will be denied if: 

The economic loss is incurred after one year from the date of the criminally 
injurious conduct that caused the injury or death for which the victim seeks 
the award;". 

19. No prescription was written for physical therapy. Baynes testified that his orthopaedic surgeon 
recommended physical therapy but did not prescribe it because Baynes had no medical insurance. 

20. In the letter re-opening the record in this case on January 25, 1994, the Administrative Law Judge 
ordered the Commission to state whether its position regarding compensation for physical therapy and surgical 
expenses had changed since the hearing in light of Baynes' having written in his application that he would be 
needing additional surgery for the removal of the steel rod in his leg and possible physical therapy. 

21. The Commission responded in a letter filed February 4, 1994 that it did not amend its position 
regarding compensation for physical therapy because it had not been contracted for nor prescribed by Baynes' 
doctor within the one year period. The Commission further stated that it believed it had paid for the surgical 
expenses related to the removal of the rod from Baynes" leg, but that if those expenses had not been paid, the 
Commission would make the payments since it had been placed on notice of the expenses within the one year 
period. The Commission further stated that it would be necessary for Baynes to submit any medical bills 
before payment could be evaluated. 

22. On February 4, 1994, Baynes filed a letter in response to the Administrative Law Judge's letter. 
Baynes wrote in the letter that he had incurred a cost of Eight Hundred Sixty-seven Dollars ($867. (X)) from 
Guilford Orthopaedic and Sports Medicine Center on July 14, 1993 to remove the rod. Baynes also wrote 
that he had out of pocket expenses of One Hundred Twenty-six and Twenty Hundredth Dollars ($126.20) for 
prescriptions written by his surgeon. 

23. Baynes stated further in his letter that, 

"Because a decision on my claim was not made until after one year from the 
date of the crime, I was denied physical therapy which I am entitled to 
under G.S. 15B-2(1). Due to the severity of the injury, it was very impor- 
tant that I received the rehabilitation directly after each surgical procedure. " 
(Emphasis added). 

24. Baynes filed his application for compensation on December 20, 1991. The Commission initially 
approved compensation to Baynes in the amount of Seven Thousand Nine Hundred Fifty-eight and Fifty-nine 
Hundred Dollars ($7,958.59) on December 15, 1992. The Commission supplemented the compensation on 
May 27, 1993 in the amount of Four Thousand Two Hundred Sixty-two and Forty-two Hundred Dollars 

($4,262.42). 

ORDER 

Pursuant to G.S. 150B-33(l3), and in my discretion, it is hereby ORDERED that the letter from the 
Administrative Law Judge dated January 25, 1994 and the letters in response from the parties filed February 
4, 1994, be placed into the record of this contested case. 

IT IS SO ORDERED. 

Based on the foregoing, the undersigned makes the following: 



117 9:2 NORTH CAROLINA REGISTER 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

1 . From the date Baynes applied for Victims Compensation, the Commission has been on notice that 
Baynes anticipated incurring expenses for surgery and physical therapy that, but for the fact the expenses 
would be incurred more than one year after the criminal attack that caused the injury to Baynes, would qualify 
as "economic loss" compensable pursuant to the North Carolina Crime Victims Compensation Act. 

2. Pursuant to G.S. 1 SOB- 1 1(a)(2), an award of compensation will be denied if the economic loss is 
incurred after one year from the date of the criminally injurious conduct that caused the injury for which a 
victim seeks compensation from the Commission. 

3. Baynes did not incur an economic loss for physical therapy within one year of the date of the 
criminally injurious conduct that caused his injury. 

4. TTie Commission has taken the position in this case that, because it was on notice from the date that 
Baynes applied for Victims Compensation that surgery may be required beyond the one year period, it will 
pay for such surgery if it receives bills in order to properly evaluate the claim. 

The Commission has also been on notice from the date that Baynes applied for Victims Compensation that 
physical therapy may be necessary after the rod and pins were removed which would be after one year from 
the date of the criminally injurious conduct. It is arbitrary and capricious for the Commission to pay for the 
surgery because it was on notice it may occur more than one year after the criminally injurious conduct and 
fail to pay for the physical therapy that may be prescribed to follow that surgery. 

Based on the foregoing, the undersigned makes the following: 

RECOMMENDED DECISION 

TTie Commission should act pursuant to 14A NCAC 11 .0502(d) to reopen the investigation of 
Baynes' claim. The Commission should set a reasonable period for the receipt of evidence of "allowable 
expenses" related to the surgery to remove the rod and pins from Baynes' leg and for the receipt of a 
prescription for physical therapy. The Commission should require evidence satisfactory to itself that the 
prescription is written because it is medically necessary and was contemplated as a possibility from the date 
of the application in this case. 

If a prescription is presented, it may be for more therapy than would have been required if Baynes 
had been prescribed physical therapy contemporaneously with the surgery installing the rod and pins. If so, 
the Commission should require the prescription to delineate how many hours of physical therapy relates to 
the second surgery and provide compensation for only that amount. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 



9:2 NORTH CAROLINA REGISTER April 15, 1994 118 



CONTESTED CASE DECISIONS 



The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the N. C. Crime Victims 
Compensation Commission. 



This the 28th day of March, 1994. 



Thomas R. West 
Administrative Law Judge 



119 9:2 NORTH CAROLINA REGISTER April 15, 1994 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneere 


4 


4 


Commeice 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


I ^ndscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursmg Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & I ^nd Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



9:2 



NORTH CAROLINA REGISTER 



April 15, 1994 



120 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 2 - April 



Unless otherwise identified, page references in this Index are to proposed rules. 



COMMERCE 

Energy Division, 4 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

DEM/ Air Quality, 80 

Environmental Management, 81 

NPDES Permit, 3 

Wildlife Resources Commission, 38, 42, 84 

FEVAL DECISION LETTERS 

Voting Rights Act, 2 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Facility Services, 4 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99 

INSURANCE 

Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 

LABOR 

OSHA, 77 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Landscape Architects, Board of, 95 

Nursing, Board of, 45 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

LIST OF RULES CODIFIED 

List of Rules Codified, 53 



121 9:2 NORTH CAROLINA REGISTER April 15, 1994 



CUMULATIVE INDEX 



TRANSPORTATION 

Highways, Division of, 85 
Motor Vehicles, Division of, 89 



9:2 NORTH CAROLINA REGISTER April 15, 1994 122 



NORTH CAROLINA ADMINISTRATIVE CODE 



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